EA v Secretary of State for the Home Department

This is an appeal, brought by the Secretary of State for the Home Department with permission of Laws LJ, against the determination of Judge Lane in the Upper Tribunal [“UTIAC”] promulgated on 7 October 2014 by which the earlier decision of the First-Tier Tribunal [“the F-tT”] of 13 May 2014 was upheld. By its determination, the F-tT allowed the appeal of the respondent (“EA”) against the deportation order made on behalf of the Secretary of State dated 21 November 2013. That deportation order had been made pursuant to section 32 of the UK Border Act 2007 [“the 2007 Act”]. EA is a foreign criminal as defined by that section. He had been convicted of possession of class A drugs with intent to supply and sentenced to 4 years’ imprisonment.

The F-tT concluded that EA’s deportation was precluded by article 8 of the European Convention on Human Rights [“the Convention”]. The appeal to UTIAC was on the basis that the F-tT had misdirected itself with respect to the test to be applied in article 8 cases of this sort. The F-tT had failed to appreciate the pressing public interest expressed by Parliament and reflected in the Immigration Rules in deportation in these circumstances. In UTIAC the judge considered that the F-tT had “demonstrated an awareness of the public interest” and had done sufficient to show that it was aware of the relevant test. The subsidiary submission made by the Home Office before UTIAC was that the finding that article 8 precluded the deportation of EA was not available on the facts as found by the F-tT, because they fell far short of the “exceptional circumstances” required by the the Immigration Rules [“the Rules”].

Shortly after the oral argument in this appeal had concluded, albeit that a judgment had been prepared and was ready for circulation to the parties, counsel for the respondent invited us to defer giving judgment until after the Supreme Court had delivered its judgments in Hesham Ali v Secretary of State for the Home Department which had been heard in January 2016. We agreed. Those judgments were handed down on 16 November, [2016] UKSC 60. We have considered further written submissions from the parties on the impact of that decision and have revised the judgment to take them into account.

Section 32 of the 2007 Act provides:

The decision of the F-tT under challenge in these proceedings was made before Parliament amended the Nationality, Immigration and Asylum Act 2002 by introducing sections 117A, 117B, 117C and 117D. They came into force in July 2014. There were corresponding changes to the Rules. In broad terms, those provisions narrowed the circumstances in which a foreign national offender could rely upon article 8 to resist deportation. The question before UTIAC was whether the F-tT had made an error of law. For the purposes of deciding that question, and therefore this appeal, no account can be taken of those new provisions. It cannot be an error of law to fail to apply statutory provisions or have regard to Rules not yet in force. However, as the judge recognised, any factual reconsideration of the article 8 question if the appeal had succeeded, would have been subject to those provisions.

The relevant Rules relating to the question whether deportation of a foreign criminal would breach article 8 of the Convention were, at the time of the decision of the F-tT, contained in paragraphs 398, 399, 399A and 399B. They provided:

EA thus fell within paragraph 398(a) of the rules. Even had his sentence been shorter so that paragraphs 399 and 399A applied to his case, the facts are such that he would not have been able to avail himself of their provisions.

Counsel cited a large number of cases in both their written and oral arguments, but it is necessary to touch on only two of them. The legal principles applicable to deportation appeals of this nature under the rules in place at the material time were well settled.

I refer first to SS (Nigeria) v SSHD[2013] EWCA Civ 550; [2014] 1WLR 998. That was a case which was initially determined before the Immigration Rules that I have recited were introduced. It considered the weight to be attached to the public interest in deporting foreign national offenders in consequence of the terms of the 2007 Act itself. It was concerned with reliance on article 8 by a foreign national offender in the particular context of the impact of deportation of a parent upon children. Amongst the conclusions of this court was that in considering the weight to be attached to the deportation of foreign criminals, the source of the policy in primary legislation was an important factor. Great weight should be attached to that policy. Additionally, the nature of the policy itself, including the moral dimension of the condemnation of serious wrongdoing and the protection of the public, worked in tandem with its source to result in great weight going into the scales in any balance for Convention purposes.

The interests of children fall to be taken into account and, as is uncontroversial, those interests are a primary consideration: see section 55 of the Borders, Citizenship and Immigration Act 2009 and, in particular ZH (Tanzania) v Secretary of State [2011] 2 AC 166, both discussed extensively in SS (Nigeria). As Laws LJ said at [55]:

So even before the introduction of paragraphs 398 et seq into the Rules the weight attached to the public interest in removing foreign criminals was strong indeed. The changes to the Rules produced a codified structure for consideration of article 8 by the Secretary of State. The approach to those Rules and their part in an article 8 case was considered by this court in the second case to which I refer, namely MF (Nigeria) v SSHD[2013] EWCA Civ 1192; [2014] 1WLR 544. The court concluded that the new rules were a “complete code” for the purposes of consideration of an article 8 based claim to resist deportation of a foreign criminal. It was that nomenclature which became the object of some criticism in the Hashem Ali case.

In the judgment of the court delivered by Lord Dyson MR he described (paragraph 35 et seq.) a structured approach to determining an article 8 question by reference to the Rules. The first step was to determine whether the person concerned fell within paragraph 398(a), (b) or (c). If he fell within paragraphs (b) or (c), then it became necessary to consider paragraphs 399 and 399A. Even in such cases, if the person concerned could not bring himself within those two further paragraphs, deportation might nonetheless be resisted on article 8 grounds but, as paragraph 398 provides, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.” Foreign criminals who fall within paragraph 398(a) (i.e. those who were sentenced to a period of imprisonment of at least four years) were unable to rely upon the terms of paragraphs 399 and 399A. In their cases it would only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors, any of which relevant for article 8 purposes may fall to be considered.

In paragraph 40 this court accepted a submission on behalf of the Secretary of State:

In paragraph 43 Lord Dyson MR concluded:

He added in paragraph 44 that the new rules provided a complete code but continued in paragraph 45:

The central issue in the Hashem Ali case was whether the general rule identified by Lord Dyson in paragraph 43 of his judgment was correct. Lord Reed, with whom Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agreed, confirmed at paragraph 38 of his judgment, as did Lord Wilson expressly at paragraphs 66 and 81, that it was:

At paragraph 50 Lord Reed concluded:

The issue of whether the rules were a “complete code” was argued before the Supreme Court. Lord Reed explained (paragraphs 17 and 53) that save in cases where an appeal is brought on the basis that the decision of the Secretary of State was not in accordance with the rules, those rules are not a complete code which, as a matter of law, governed the determination of appeals. He continued:

It is abundantly clear that Hashem Ali has not lowered the significant hurdle which must be overcome by a foreign criminal to succeed in demonstrating that it would be disproportionate to deport him from the United Kingdom.

The appellant was born in Sierra Leone on 28 June 1968 and entered the United Kingdom on 17 September 1992 on a British Overseas Citizen passport. He was granted leave to enter for six months and then lodged an asylum claim. That asylum claim was never considered due to the substantial backlog overwhelming the Home Office at the time. He was granted indefinite leave to remain on 9 August 1999. Between July 1994 and February 2004, the appellant was convicted on 23 occasions of 38 offences, largely for dishonesty, for which he received sentences of imprisonment of something over three years. On 28 February 2006 he was convicted of supplying controlled Class A drugs and received another three year prison sentence. Two days later he was convicted of further offences for which he received an additional four months’ imprisonment. Deportation action was taken against him to coincide with his release from custody following those sentences, but it fell away because of difficulties in establishing his Sierra Leonean nationality. That is no longer an issue in these proceedings.

On 5 August 2011 the appellant was convicted at Reading Crown Court on two counts of possessing class A controlled drugs with intent to supply. He was sentenced to 4 years’ imprisonment on each count to be served concurrently. It is in those circumstances that the deportation order came to be made.

The bare bones of the article 8 claim are these. The appellant has a daughter, M, born on 29 June 1996. She was thus six weeks short of her 18^th birthday at the date of the promulgation of the decision of the F-tT. M has lived for many years with her grandmother, apparently having fallen out with her mother, and she and EA have not lived together since she was 7. M visited EA from time to time whilst he was in prison, and they had kept in contact. He had remained in immigration detention following completion of his prison sentence. The F-tT records that M had not visited him for 12 months before the hearing. EA has two other children: F, born on 23 January 2011 and B, born on 6 June 2009. As part of his article 8 argument, EA claimed that he had a subsisting relationship with the mother of those children. That was untrue. He and their mother had long since separated before his latest incarceration. The children lived with her. EA had been in prison for almost the whole of F’s life and for much of B’s life. Their mother had taken them to see him in prison from time to time and he remained in contact with them.

In its reasons for making the deportation order, the Home Office did not accept that EA enjoyed any family life with any of his three children. The F-tT had witness statements from EA and members of his extended families and heard oral evidence from some of them. It came to a contrary conclusion, as it was entitled to.

In its findings, the F-tT noted that a person may be deported if the public interest requires it and that:

I should note that there was no question that any of the children could relocate with EA to Sierra Leone. Finally, the F-tT dealt with private life under article 8. It considered that it added nothing to the article 8 claim. It is not unfair to distil the reasoning of the F-tT to these propositions:

It would benefit the two small boys to have continuing contact with their father in the United Kingdom;

It would benefit M to have similar continuing contact for the remaining few weeks of her childhood (and beyond), particularly given the opinion of her grandmother that EA’s removal would be “devastating” in the context of M’s self-reported vulnerability;

The appellant’s deportation would have an adverse impact on each of the children;

Despite the public interest in the prevention of disorder and crime, there were mitigating factors in the offending and the current risk of re-offending was medium;

Taken together, these features of the case gave rise to exceptional circumstances for the purposes of paragraph 398.

Miss Rowlands for the appellant submits that the determination of the F-tT nowhere indicates that its two members were alive to the nature and strength of the public interest engaged in cases of this sort. In particular, the F-tT did not expressly or impliedly apply the correct test to exceptional circumstances, namely that “very compelling reasons” (or a very strong case indeed) would be needed to outweigh the public interest in deportation. On any view, the facts of this case fall well below that threshold. Miss Weston supports the conclusion of the judge that there was no error of law, because the F-tT recognised that it was engaged in a search for exceptional circumstances and referred to the public interest in deportation. There was no need to refer to the content of the Rules, the 2007 Act or the authorities.

Decisions of tribunals should not become formulaic and rarely benefit from copious citation of authority. Arguments that reduce to the proposition that the F-tT has failed to mention dicta from a series of cases in the Court of Appeal or elsewhere will rarely prosper. Similarly, as Lord Hoffmann said in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, “reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account”. He added that an “appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself”. Moreover, some principles are so firmly embedded in judicial thinking that they do not need to be recited. For example, it would be surprising to see in every civil judgment a paragraph dealing with the burden and standard of proof; or in every running down action a treatise, however short, on the law of negligence. That said, the reader of any judicial decision must be reassured from its content that the court or tribunal has applied the correct legal test to any question it is deciding.

The question of the weight to be attached to the public interest in foreign national offender deportation cases, the proper meaning of “exceptional circumstances” in paragraph 398 of the Rules and the test to be applied in article 8 cases were, until relatively shortly before the decision of the F-tT in this case, matters of intense debate and some controversy. MF was decided in October 2013; SS shortly before. The F-tT hearing was in April 2014. There is nothing in the determination which suggests that the F-tT appreciated that to resist deportation it was necessary for EA to demonstrate “very compelling reasons”, having regard to the totality of the evidence, why he should not be deported. It is possible when reading many decisions to be confident that the right test has been applied from the way in which the issues are discussed and conclusions reached, even if it is not expressly articulated, but I do not consider that this is one of those decisions.

As the judge noted, the F-tT referred to “exceptional circumstances” and the public interest in deportation. Yet, in my opinion, it is clear that the F-tT did not appreciate the great weight that must be attributed to the public interest in deportation in cases of this sort. In paragraph 95 of its determination, quoted above, the F-tT refers only to the public interest in the prevention of disorder and crime without any reference of the great weight to be attached to removal in the public interest. That is a dimension which stretches far beyond narrow questions of deterrence and future risk. It is the moral dimension referred to by Laws LJ in SS (Nigeria). It captures the public revulsion at serious offending by those who are, in one sense, guests in this country. There is no reference to the test it should have been applying, namely that the public interest in deportation would require very compelling reasons to be displaced by article 8 considerations.

Furthermore, it is clear from its determination that the F-tT did not apply the test of very compelling reasons articulated in MF. The conclusion that routine non-residential contact with two small children by their father, with whom they had never lived, could amount to exceptional circumstances to avoid the automatic deportation dictated by the 2007 Act would neuter completely both the statutory provisions and the Rules. It comes close to suggesting that removing a parent of children with whom he is in contact, and who will remain in the United Kingdom, is in itself an exceptional circumstance which is sufficient to resist deportation on account of its negative impact on family relationships. There must be relatively few cases in which there is a meaningful relationship between a parent and children where deportation of the parent, with consequent physical separation, will not have an adverse impact on the children. The argument accepted by the F-tT would have been even stronger had EA remained in a relationship with the children’s mother and intended to live with them on his release from custody. Yet the 2007 Act, the Rules and the test now approved in Hashem Ali all contemplate the deportation of foreign criminals with families in the United Kingdom with whom they are living and to whom they provide emotional and financial support. Furthermore, it is to my mind impossible to accept that the circumstances of M, whether taken individually as the F-tT did, or collectively with the position of the two small boys, could sound as very compelling reasons for the purposes of article 8.

The approach of the F-tT in this case, if correct, would result in the exception becoming the rule. In my opinion, its approach was infected by a clear error of law. Miss Weston made the fair point that neither party appearing before the F-tT appears to have drawn the tribunal’s attention to the relevant recent case law. That may be so, but it does not undermine the conclusion that the F-tT approached the question under article 8 in an erroneous fashion. It follows that the Secretary of State’s appeal should have been allowed by UTIAC and her appeal must be allowed in this court.

We asked counsel to consider the correct approach if we were of the view that the appeal should be allowed. Miss Weston submits that we should remit the case to UTIAC for that tribunal to determine the current facts, or itself remit it back to the F-tT. Miss Rowlands submits that the facts are such that, whether by reference the rules as they stood in April 2014, or under the scheme as amended, there is no prospect of article 8 preventing EA’s deportation.

I bear in mind section 55 of the 2009 Act and of the guidance made under it (which was included in the bundle of authorities produced by counsel) and cases such as ZH (Tanzania) which speak of the interests of the child as being a primary consideration. Nonetheless, in the circumstances of this case, it is unrealistic to suppose that a further evidential inquiry would give rise to any possibility of EA establishing that his deportation should be prevented by article 8. M is now an adult and, even assuming that the non-resident contact with the two small boys (now 7 and 6) has continued as anticipated by the F-tT, the circumstances of the children could not impede deportation. I would allow the Secretary of State’s appeal against the order of UTIAC and substitute an order allowing her appeal against the decision of the F-tT.

I agree.