The Secretary of State for the Home Department v SU

This is a second appeal by the Secretary of State. In February 2014, the Secretary of State refused to revoke a deportation order made against the respondent on 17 February 1998, following his conviction for conspiracy to defraud for which he was sentenced to 42 months’ imprisonment. The respondent’s appeal against the refusal was allowed by the First-tier Tribunal (FTT) on 10 September 2014 and the Upper Tribunal dismissed the Secretary of State’s appeal on 8 December 2014. The Secretary of State appeals to this court with permission granted by Lord Justice (Stephen) Richards.

We were told that this is the first occasion on which this court has been concerned with the correct approach to the revocation of a deportation order where it has been implemented but the deportee has, in breach of the deportation order, returned to the UK and has established a private and family life during the following period of unlawful presence here.

The respondent is a citizen of Pakistan who was born in May 1959. He entered the UK illegally in March 1994 but shortly afterwards lodged a claim for asylum. That application was refused in November 1997 and his appeal against the refusal was dismissed in June 1998. In October 1995, he married MPP, an Indian national with a right of residence in the UK whom he had met while living in the UK. He was granted leave to remain as a spouse until March 1997. In September 1996, he was convicted on two counts of conspiracy to defraud, sentenced to 42 months’ imprisonment and recommended by the trial judge for deportation. In February 1998, a deportation order was made against him. He appealed against the order but by August 1998 his appeal rights had been exhausted and, in October 1998, he was deported to Pakistan.

In 2000, the respondent illegally re-entered the UK. His marriage to MPP was dissolved in January 2002 and he subsequently married JU, who had come to the UK from Pakistan and become a British citizen by virtue of a previous marriage. In June 2003, he applied for leave to remain as JU’s spouse. In November 2005, he applied for indefinite leave to remain as part of the “family exercise 2003” but his application was dismissed in September 2006 on the grounds that he did not meet the relevant criteria.

No progress was made with the original application for leave to remain as JU’s spouse until December 2013, when the Secretary of State wrote to the respondent requesting information, to which the respondent promptly replied.

The Secretary of State determined that it was first necessary to decide whether to revoke the extant deportation order made in 1998. In February 2014, she determined not to revoke it, setting out her reasons in a letter dated 5 February 2014.

As earlier mentioned, the respondent successfully appealed to the FTT against the refusal to revoke the deportation order and the Secretary of State unsuccessfully appealed that decision to the Upper Tribunal.

The respondent’s application for leave to remain as JU’s spouse has yet to be determined, pending the outcome of these proceedings.

The statutory framework for deportation orders and the system of appeals against them (and against a refusal to revoke a deportation order) relevant to this appeal are or were set out in a number of statutory provisions. There have since been some further changes but I shall refer only to the applicable provisions.

Section 3(5) of the Immigration Act 1971 (as amended) (the 1971 Act) provides that a person who is not a British citizen is liable to deportation if the Secretary of State deems it to be conducive to the public good, and section 3(6) (as amended) provides that a person who is not a British citizen is also liable to deportation if, after he has attained the age of 17, he is convicted of an offence punishable by imprisonment and on his conviction he is recommended for deportation by a court empowered by the Act to do so. Section 5(1) provides that, where a person is liable to deportation under section 3(5) or (6), the Secretary of State may make a deportation order against him.

Section 32(4) of the UK Borders Act 2007 (the 2007 Act) provides that, for the purposes of section 3(5) of the 1971 Act, “the deportation of a foreign criminal is conducive to the public good”. A “foreign criminal” is a person who is not a British citizen, is convicted in the UK of an offence and is sentenced to a period of imprisonment of at least 12 months. Further, section 32(5) provides that the Secretary of State must make a deportation order in respect of a foreign criminal, subject to section 33. So far as relevant to the present appeal, the obligation to make a deportation order under section 32(5) is displaced by section 33 where deportation would breach “a person’s Convention rights”, i.e. their rights under the Convention on Human Rights and Fundamental Freedoms.

The grounds on which an appeal can be made against a deportation order (or a refusal to revoke an order) are set out in section 84(1) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) and include that the decision is not in accordance with immigration rules, that the decision, or removal pursuant to a decision, is or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights, or the decision is otherwise not in accordance with the law.

The relationship generally between immigration decisions and Convention rights, and particularly between decisions to deport foreign criminals and their Convention rights, is the subject of provisions contained in Part 5A of the 2002 Act, which was introduced by the Immigration Act 2014 with effect from 28 July 2014.

Section 117A provides:

The decision of the FTT in the present case was made on 10 September 2014 and accordingly, by virtue of section 117A, it was required to apply Part 5A in determining whether the refusal to revoke the deportation order against the respondent breached the respondent’s rights under Article 8 of the Convention: see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292; [2015] INLR 405, at [38].

Section 117B(1) provides that “[t]he maintenance of effective immigration controls is in the public interest”. Section 117B(4) provides:

Section 117C(1) provides that “[t]he deportation of foreign criminals is in the public interest”. Section 117C(3) provides that in the case of a foreign criminal (C) who has not been sentenced to a period of imprisonment of more than four years, “the public interest requires C’s deportation unless Exception 1 or Exception 2 applies”. It is common ground that neither Exception applied in the present case.

The Immigration Rules applicable to the decision of the FTT were those in force at the time of its decision: YM (Uganda) v Secretary of State for the Home Department at [39].

The relevant provisions of the Immigration Rules are paragraphs 390 – 400, as in force immediately following their amendment with effect from 28 July 2014.

Paragraphs 390 – 392, under the heading “Revocation of deportation orders”, provided:

Those paragraphs were considered by this court in ZP (India) v Secretary of State for the Home Department [2015] EWCA Civ 1197; [2016] 4 WLR 35 at [20] – [27]. In that case, ZP had been deported from the UK pursuant to an order made on 28 November 2008, following her conviction of offences for which she received two concurrent sentences of 12 months’ imprisonment. While still in India, she applied for the revocation of the deportation order on Article 8 grounds and, by a decision made on 17 April 2014, the Upper Tribunal allowed her appeal and revoked the order. In this court, the parties were not agreed as to which of the paragraphs governed the case. Underhill LJ, with whom Christopher Clarke LJ and Sir Timothy Lloyd agreed, held that paragraph 390 applied to all applications, albeit that its provisions are “at a very general level” and were in practice, in that case, superseded by the more specific provisions that follow.

The court held that paragraph 390A applied only in a case where the applicant had not yet been deported. In the present case, the respondent was deported pursuant to the deportation order in October 1998, having exhausted all appeals procedures. The fact that he subsequently re-entered the country illegally and so made his application for revocation of the deportation order from within the UK does not provide grounds for applying paragraph 390A to it. Any doubt on this question was resolved by the introduction of paragraph 399D, to which I refer below.

The court held that paragraph 391 applies to applications to revoke a deportation order by a person who has been deported following conviction for a criminal offence. In ZP (India), the applicant applied for revocation of the deportation order less than 10 years after it had been made. Accordingly, continuation of the order was “the proper course” unless, so far as relevant, continuation would be contrary to her Convention rights “or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors”. In addressing that issue, and taking account of the relationship between the Immigration Rules and Article 8 rights as explained in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192; [2014] 1 WLR 544 (and, in large part, subsequently confirmed by the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799), Underhill LJ said at [24]:

In the present case, the application to revoke the deportation order, and the FTT’s decision, was made over 10 years after the order was made. The effect of paragraph 391 in these circumstances was the subject of consideration and decision below, and forms part of the Secretary of State’s grounds of appeal. The unusual feature of the present case, that the applicant had been deported but subsequently re-entered the country illegally, is expressly addressed in paragraph 399D.

Paragraphs A398, 398, 399, 399A-399D and 400 are contained in a section headed “Deportation and Article 8”. Paragraph A398 provides:

Paragraphs 398 – 399A apply where the applicant has yet to be deported; this formed part of this court’s reasoning in ZP (India) and follows from the express terms of paragraph 398: see ZP (India) at [22].

Paragraph 399D was introduced with effect from 28 July 2014 and so was applicable at the time of the FTT’s decision in the present case. It provides:

No reference was made to paragraph 399D in the decisions of either the FTT or the UT, nor does it appear that either Tribunal was referred to it.

Before the FTT, the respondent put his case on two grounds: first, that as a practising Christian he had a well-founded fear of persecution if returned to Pakistan and, secondly, his deportation would breach his Article 8 rights to enjoy private and family life in the UK. The FTT rejected the respondent’s case of a well-founded fear of persecution, disbelieving his evidence, and that case was not pursued on appeal to the UT. The FTT held in favour of the respondent on his Article 8 case.

Having considered the facts and made findings, the FTT addressed the question as to which Rules were applicable to its decision, concluding that they were the “new rules”. The judge set out what he considered to be the relevant paragraphs of the Rules, namely paragraphs 390, 390A, 391A, 392, A398, 398 and 399. He did not set out 399D. He also set out sections 117A, 117B(1) and 117C, and the relevant definitions in section 117D, of the 2002 Act. He did not set out section 117B(4).

Noting that the respondent could have applied for entry clearance from 9 October 2008, ten years after the making of the deportation order, the FTT observed that this did not mean that “the deportation order is any less relevant today than it was on 9 October 1998”. The respondent had not made an application for entry clearance but re-entered the UK clandestinely and had since then lived a lie, not telling his wife JU that he had served a prison sentence or been deported or re-entered the UK illegally. The FTT further found that the respondent had "effectively snapped his fingers at UK justice and immigration control and that the public interest requires deportation”. The judge found that the respondent and JU had established a private and family life and that their immediate family circle included JU’s daughter, although there was no element of dependency. JU was originally from Pakistan and the judge concluded that there would be no insurmountable obstacles to her going to live with the respondent if he were returned to Pakistan.

Going on to consider the relationship between the Immigration Rules and Article 8, the FTT found that there was “A pressing public interest in the deportation of the [respondent] which it would require an extremely strong Article 8 case to displace” and that “the pressing public interest in deportation outweighs any claim under the Rules”.

The FTT continued by referring to the relevant passages in the judgment of Lord Dyson MR in MF(Nigeria). Having also referred to other authorities, the FTT said:

The FTT then approached the issue under Article 8 as a separate question from the Rules, correctly in the light of the subsequent decision of the Supreme Court in Ali, as the Secretary of State acknowledges on this appeal. The FTT set out six questions which it derived from R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368 and other authorities. At [45] the judge reiterated that he had found that the respondent enjoyed private and family life with his wife and her daughter and a private life with his Christian community but went on to say that, while deportation would interfere with that private and family life “the interference is in accordance with the law and the legitimate aim of immigration control and the overarching aim of protecting the public from criminal behaviour”.

The FTT referred to cases dealing with delay (EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] 1 AC 1159 and WB (Pakistan) v Secretary of State for the Home Department [2009] EWCA Civ 215), and directed itself that the proportionality of the impact of removal on the respondent’s private life should be assessed according to the law on delay laid down in EB (Kosovo).

This led to the FTT’s conclusion on the case at [47]:

The Secretary of State’s appeal was dismissed. The UT held that the FTT had reached a conclusion open to it on all the evidence.

The UT further considered that the FTT’s conclusion was supported by the terms of paragraph 391 of the Rules, a point that the UT judge raised in the course of the hearing. I will return to this point.

On behalf of the Secretary of State, Mr Sheldon submitted that the FTT had made four critical errors of law. First, it had failed to identify and apply paragraph 399D of the Rules, and it had wrongly taken account of and applied paragraphs 390A and 398-399A. Second, it had failed to have regard to and apply section 117(B)(4) of the 2002 Act. Third, it had failed to give appropriate weight to its own finding that the Secretary of State’s refusal to revoke the deportation order was in accordance with the Rules. Fourth, it failed properly to assess, in accordance with authority, the impact of the Secretary of State’s delay in dealing with the respondent’s position.

I will deal with each of these submissions, and the submissions in response by Mr Yeo on behalf of the respondent, in turn. Overall, Mr Yeo submitted that, while there may be some confusion and some unfortunate phrases in the FTT’s decision, the judge applied the right principles and came to a justifiable conclusion (or, as Mr Yeo pithily put it, the judge “got it right in the end”). He stressed that, while the respondent re-entered the country illegally in 2000, he did not just disappear but made his presence known to the authorities by his applications in 2003 and 2005.

As to the first error of law on which the Secretary of State relies, paragraph 399D had come into effect on 28 July 2014, only very shortly before the hearing. It would not appear that the judge was aware of it or that he was referred to it. It was clearly directly in point to the respondent’s case and encapsulates the public interest in ensuring that a deportation order is not only implemented but fully effective. It is not effective if the deportee unlawfully returns to the UK while the order remains in force. It meets a case not met by paragraph 391 which provided (at the time of the FTT hearing) that, in the case of a person who had been deported following conviction for a criminal offence for which the deportee was sentenced to a term of imprisonment of less than four years, continuation of the deportation order would be the proper course “unless 10 years have elapsed since the making of the deportation order”. It would be odd if this paragraph applied irrespective of the fact that the deportee had returned unlawfully to the UK during the period of 10 years. It clearly does not, following the introduction of paragraph 399D.

Paragraphs 390A and 398 were held by this court in ZP(India), decided after the FTT hearing and its decision in the present case, to apply to a person against whom a deportation order has been made but before the deportation has occurred. They were not therefore applicable in the present case.

As it seems to me, there was a clear failure to have regard to the applicable paragraphs of the Rules, albeit in circumstances reflecting no criticism of the FTT judge.

Mr Yeo submitted that, while the wrong paragraphs may have been applied, there was little difference in the substance of the tests laid down by them. Paragraph 398 provides that, where paragraphs 399 or 399A do not apply (as is common ground that they did not in this case), “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 requirement of “very compelling circumstances” is not, submitted Mr Yeo, in substance different from the “very exceptional circumstances” required by paragraph 399D.

I am unable to accept this submission. The difference in the language of paragraphs 398 and 399D, suggesting a more stringent requirement under paragraph 399D, reflects a real difference in the circumstances covered by each paragraph. Paragraph 398 addresses the question whether a deportation order should be made, or an existing order maintained, against a person who has yet to be deported, whereas paragraph 399D addresses the very different case of a person who has been deported and then re-enters illegally and in breach of the order. In the latter case, any Article 8 claim that was raised by the deportee before his original deportation will, ex hypothesi, have been decided against him. It is readily understandable that in the cases covered by paragraph 399D the Secretary of State should have formed the view that there is a particularly strong public interest in maintaining the integrity of the deportation system as it applies to foreign criminals.

In my view, the application by the FTT of the wrong paragraphs of the Rules was a material error of law, and it cannot be said that the FTT’s decision would inevitably have been the same if the judge had directed himself to the correct paragraphs.

The second error advanced by Mr Sheldon was the failure to have regard to section 117B(4), requiring that “little weight” should be given to a private or family life established by a person at a time when he or she is in the UK unlawfully. Section 117B was introduced with effect from 28 July 2014, again shortly before the FTT hearing. The judge cited section 117B(1) and said at [42] that in assessing the public interest under article 8(2), he had kept in mind the provisions of section 117B of the 2002 Act as amended by section 19 of the 2014 Act . He did not, however, cite section 117B(4) nor say that he had regard to the section as regards the weight to be attached to the respondent’s private and family life in the UK since his unlawful return.

Mr Yeo submitted that the FTT made clear that the respondent had to show exceptional circumstances before his private and family life could outweigh the public interest in not revoking, but enforcing, the deportation order against him. Nonetheless the judge concluded that such circumstances existed by reason of the substantial delay in dealing with the respondent’s application made in 2003 for leave to remain as a spouse.

In my judgment, the Secretary of State’s case on this is well-founded. In considering whether there are exceptional circumstances, or very exceptional circumstances as required by paragraph 399D, it is necessary to know the weight to be attached to each side of the balance. It is essential to appreciate and apply the statutory requirement to apply “little weight” to the respondent’s private and family life developed while unlawfully present in the UK. The FTT neither referred to nor applied this requirement and it is pure speculation to consider what its decision might have been, had it done so.

The third error of law advanced by Mr Sheldon is that the FTT failed to take into account the weight to be attached to the fact, as accepted by the FTT, that the Secretary of State’s decision was in accordance with the Rules. He relied on the judgment of Lord Reed in Ali, with which all the other members of the court agreed, in particular at [46] and [53]. While the Rules do not govern the determination of appeals, the policies to which the Rules give effect are “nevertheless a relevant and important consideration for tribunals determining appeals on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State’s assessment of the strength of the general public interest in the deportation of foreign offenders…” (para 53).

Ali was decided by the Supreme Court after the decisions in the present case but on this point it largely affirmed the approach taken by this court in MF (Nigeria) to which the FTT referred in the decision at [31]-[32].

This suggested error is inextricably bound up with the first error, which for the reasons given above I consider to be established. A generous reading of the decision might suggest that the FTT did have regard to the weight to be attached to the policies expressed in the Rules, but it is not clear and on balance I consider this error also to be made out.

The fourth error, submits counsel for the Secretary of State, is the failure of the FTT to assess properly the delay of about 10 years on the part of the Home Office in dealing with the respondent’s application for leave to remain made in 2003, when throughout the entirety of that period the respondent’s presence in the UK was unlawful. Although the FTT referred to the approach to delay laid down in EB (Kosovo), it is submitted that the FTT failed to apply it.

In EB (Kosovo), Lord Bingham at [14]-[16] explained the circumstances in which account could be taken of delay in dealing with an application. First, “the applicant may during the period of delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier”. If so, the applicant’s article 8 claim “will necessarily be strengthened”. There was no finding by the FTT, nor so far as I am aware any evidence before it, that this was the case as regards the respondent.

Secondly, any relationship entered into by a person while they are unlawfully in the UK is likely, initially, to be tentative, given that he or she may be removed at any time. This is particularly so, if the other party knows of that person’s status in the UK. Delay may cause this sense of impermanence to diminish. In the present case, the respondent’s second wife did not know that he had been deported and was illegally in the UK. As they had got married, she, and it may be presumed he, thought they were in a permanent relationship. The FTT found that they could both pursue their family life in Pakistan. The FTT found no material change in their position during the period of delay.

Thirdly, delay may be relevant “in reducing the weight otherwise to be accorded to the requirement of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes”. If established, such delay “may have a bearing on the proportionality of removal”. It is then capable of being a relevant factor and it is for the tribunal to decide the weight to be given to it. The FTT did not embark on any such analysis in this case.

In the present case, it is of particular importance in weighing the effect of delay to have regard to the fact that the respondent had been deported and had illegally entered the UK in breach of the deportation order. The appellant in EB (Kosovo) was in a very different position, being an asylum seeker.

In my view, the submission that the FTT failed to weigh delay in accordance with the principles in EB (Kosovo) is well founded, but it forms part of the larger picture of a failure to carry out the balancing exercise in accordance with the applicable regime.

Mr Yeo placed some reliance on the decision of this court in MN-T (Colombia) v Secretary of State for the Home Department [2016] EWCA Civ 893 and, in particular, on the observations of Jackson LJ at [41]. The facts of that case were a long way from the facts in the present case. The claimant had lived lawfully in the UK with her mother and sister for 22 years since 1977 when she was 9 years old, before she pleaded guilty to a serious charge of drug-dealing and was sentenced to imprisonment for a term of 8 years. A deportation order was made in 2008 and the claimant lost her appeal against it in March 2009. No steps were taken to deport her until a claim for further leave to remain was made in June 2012 and rejected. Her appeal was heard by the FTT on 24 July 2014. In assessing the effect of delay on the part of the Secretary of State, the FTT carefully applied the approach laid down in EB (Kosovo) and made findings that her family and private life had further developed and strengthened, that her social and cultural links with Colombia had further weakened and her rehabilitation had further progressed, all since the decision in 2009. In the particular context of that case, it was held by the FTT that these constituted very compelling circumstances outweighing the high public interest in deportation. This court considered it to be a borderline case but one in which the FTT was entitled to reach that decision, which was therefore upheld.

The contrast with the present case, in terms of both the overall circumstances and the approach of the FTT to the assessment of delay, is obvious.

The passage on which Mr Yeo relied was at [41]-[42] in which Jackson LJ added comments, not forming part of the reasoning in his judgment, that where the Secretary of State delays deportation for many years, it lessens the weight of some reasons for the high public interest in the deportation of foreign criminals. The risk of re-offending had been much reduced during the delay. The deterrent effect on offending was weakened if prompt action to deport is not taken. The expression of society’s revulsion at the offender’s criminal conduct is blunted. These observations are of course well made, but they were not made in the context of a person who had unlawfully re-entered the country in breach of a deportation order and they clearly do not obviate the need for the decision-making tribunal to apply the relevant provisions and legal principles.

In my judgment, the FTT made significant errors of law in this case and the UT was wrong to hold that it had not done so. It did not address the failure of the FTT to consider and apply the applicable statutory provisions or Rules or give consideration to whether the FTT had properly applied the correct approach to the assessment of delay. Instead, it focussed on paragraph 391 of the Rules, which was not the applicable paragraph as the respondent was not applying for revocation from abroad, and had no regard to paragraph 399D.

That is sufficient to dispose of this appeal, but it is right to comment, as Mr Sheldon invited us to do, on the approach adopted by the UT to the application of paragraph 391, as it could clearly affect other cases.

I have earlier set out paragraph 391 in the form that was in force at the time of the FTT decision in September 2014. The UT set it out in the form following its amendment with effect from 20 October 2014, which added at the end of paragraph 391(1)(a) “when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained”. The UT stated that the effect of paragraph 391, as amended, was that in a case to which it applied “continuation of the deportation order is not likely to be the proper course”. This is not expressly provided in paragraph 391 nor, in my judgment, can it be implied. While under paragraph 391 there is a presumption that continuation of the deportation order “will be the proper course” if less than 10 years have elapsed, there is no presumption either way after the 10 years have elapsed. Paragraph 391 simply requires each case to be considered on its merits, taking account of applicable paragraphs of the Rules, including most obviously paragraph 390, and the applicable statutory provisions. The effect of the expiry of 10 years is only that the previous presumption in favour of maintaining the order falls away. The UT was wrong to suggest that an onus lay on the Secretary of State to establish that maintenance of the order will be the proper course. In any event, paragraph 391 is not, in my view, applicable in a case to which paragraph 399D applies.

It was the UT itself that raised the effect of paragraph 391 with the Secretary of State’s representative. Its Decision at [17] records that the representative conceded, in the light of paragraph 391, that he could not argue that continuation of the deportation order was the proper course, with the result (as it appeared to the UT) that the appeal against the refusal to revoke the deportation order should succeed under the Rules. A concession apparently made on an inapplicable paragraph raised for the first time by the Tribunal itself cannot restrict the right to appeal on grounds that the relevant provisions and principles had been ignored or misapplied, and I did not understand Mr Yeo to contend otherwise.

For the reasons given in this judgment, I would allow the appeal and remit the matter to the UT for reconsideration.

I agree.

I also agree.