NE-A (Nigeria) v Secretary of State for the Home Department

These two appeals are from decisions by the Upper Tribunal (“the UT”) in respect of claims by foreign criminals that their deportation from the United Kingdom would be in breach of Article 8 of the European Convention of Human Rights. In NE-A (Nigeria) the tribunal dismissed the claim, in HM (Uganda) it allowed the claim. The appeals are brought by NE-A and the Secretary of State respectively. The issues concern the construction or application of section 117C(6) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), which provides that in the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are “very compelling circumstances”, over and above those described in the exceptions contained in section 117C(4)-(5).

By section 32 of the UK Borders Act 2007 the Secretary of State must make a deportation order in respect of a foreign criminal (as defined in section 32(1)) unless one of the exceptions in section 33 applies. One exception is that removal of the foreign criminal would be in breach of Convention rights.

Part 13 of the Immigration Rules (“the Rules”) relates to deportation. In particular, paragraphs 398-399A apply where a person claims that their deportation would be contrary to Article 8. The version of paragraph 398 in force between July 2012 and 27 July 2014 provided that in the case of persons convicted of an offence for which they had been sentenced to a period of imprisonment of at least four years, the Secretary of State in assessing a claim under Article 8 would consider whether paragraph 399 or 399A applied and, if it did not, “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”.

With effect from 28 July 2014, paragraph 398 provided:

“398.

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

(a)

the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years …

the Secretary of State in assessing the 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 where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.”

Paragraph 399 applies where the person has a relationship with a child under the age of 18 who is in the UK, or with a partner who is in the UK and is a British citizen or settled in the UK, and other conditions are met. Paragraph 399A applies where the person has been lawfully resident in the UK for most of their life and other conditions are met.

Part 5A of the 2002 Act, introduced by the Immigration Act 2014 with effect from 28 July 2014, applies inter alia to appeals to a tribunal from a deportation decision by the Secretary of State which is alleged to be in breach of Article 8. It provides, in material part:

“117A. Application of this Part

(1)

This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –

(a)

breaches a person’s right to respect for private and family life under Article 8, and

(b)

as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2)

In considering the public interest question, the court or tribunal must (in particular) have regard –

(a)

in all cases, to the considerations listed in section 117B, and

(b)

in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3)

In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

…

117C. Additional considerations in cases involving foreign criminals

(1)

The deportation of foreign criminals is in the public interest.

(2)

The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3)

In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.

(4)

Exception 1 applies where –

(a)

C has been lawfully resident in the United Kingdom for most of C’s life,

(b)

C is socially and culturally integrated in the United Kingdom, and

(c)

there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.

(5)

Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.

(6)

In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7)

The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”

In Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803, [2016] 1 WLR 4204 the court examined the interaction between section 117A(2) (the requirement to “have regard to” the considerations in sections 117B and 117C) and the various provisions of sections 117B and 117C themselves. In a judgment with which the other members of the court agreed, Sales LJ first recorded the agreed starting point as follows:

“45.

It is common ground that the starting point for consideration of the proper construction of Part 5A of the 2002 Act is that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with, and not in violation of, Article 8. In that regard, both sides affirmed the approach to interpretation of Part 5A to ensure compliance with Article 8 as explained by this court in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662, in particular at [26] and [31].”

He went on to explain that in order to understand the effect of the formula “the court or tribunal must … have regard … to” in section 117A(2), it is necessary to ask, with clarity and precision, to what does the subsection require regard to be had? He continued:

“49.

… Section 117A(2) does not have the effect that, for example, a court or tribunal has a discretion to say that the maintenance of effective immigration control is not in the public interest, in direct contradiction of the statement of public policy by Parliament in section 117B(1). Where Parliament has itself declared that something is in the public interest – see sections 117B(1), (2), (3) and section 117C(1) – that is definitive as to that aspect of the public interest. But it should be noted that having regard to such considerations does not mandate any particular outcome in an article 8 balancing exercise: a court or tribunal has to take these considerations into account and give them considerable weight, as is appropriate for a definitive statement by Parliament about a particular aspect of the public interest, but they are in principle capable of being outweighed by other relevant considerations which may make it disproportionate under article 8 for an individual to be removed from the UK.

50.

Another type of consideration identified in Part 5A to which regard must be had under section 117A(2) is the statement in section 117C(6) that ‘the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2’ (my emphasis). There is a similar requirement in section 117C(3), on its proper construction: see NA (Pakistan) v Secretary of State for the Home Department at [23]-[27]. In these provisions, Parliament has actually specified what the outcome should be of a structured consideration of Article 8 in relation to foreign criminals as set out in section 117C, namely that under the conditions identified there the public interest requires deportation. The ‘very compelling circumstances’ test in section 117C(3) and (6) provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them. If, after working through the decision-making framework in section 117C, a court or tribunal concludes that it is a case in which section 117C(3) or (6) says that the public interest ‘requires’ deportation, it is not open to the court or tribunal to deny this and to hold that the public interest does not require deportation.”

The analysis in paragraph 50 of Rhuppiah was strictly obiter (the court’s actual decision related to section 117B(5), not section 117C(6)), although it did form a considered part of the court’s reasoning. The submission before us, advanced primarily by Mr Buley on behalf of NE-A but also adopted by Miss Beach on behalf of HM, is that the analysis was wrong and should not be followed. It is submitted that the content of section 117C(6) is a relevant consideration (albeit no doubt a very important one) for the purposes of determining whether there is a breach of Article 8, but it is not a complete code fixing how that question should be resolved.

The submission is founded on the judgment of the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, which post-dated the judgment of the Court of Appeal in Rhuppiah.The case concerned the application of the Rules relating to Article 8 claims in deportation cases. The version of the Rules under consideration was that in force between July 2012 and 27 July 2014. At paragraph 37 of his judgment, Lord Reed considered the statement in paragraph 398 of that version that, in the case of a person sentenced to at least four years’ imprisonment, if paragraphs 399 and 399A did not apply “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. He referred with apparent approval to what the Court of Appeal had said in MF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192, [2014] 1 WLR 544 about the “exceptional circumstances” provision, to the effect that “very compelling circumstances” were required to outweigh the public interest in deportation. At paragraph 38 he summarised the position as follows:

38.

The implication of the new rules is that paragraphs 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of paragraphs 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances …. The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State ….”

At paragraphs 39 ff. Lord Reed described the process of appellate decision-making in the context of immigration cases involving Article 8, referring in particular to the approach laid down in Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167. At paragraph 46 he referred to the special feature, in the context of appeals against deportation decisions, that the decision under review had involved the application of rules made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament had approved. He continued:

“46.

… It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above.”

At paragraph 48 he said that the “structured approach to proportionality” which has been adopted in UK domestic law makes provision for consideration of the elements involved in an assessment of fair balance in the context of immigration and deportation. At paragraph 49 he observed that “[w]hat has now become the established method of analysis can therefore continue to be followed in this context’. In the next paragraph he summarised the position as follows:

“50.

In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed - very compelling, as it was put in MF (Nigeria) - will succeed.”

At paragraph 51 he referred to the fact that the Court of Appeal in MF (Nigeria) had described the relevant rules as a “complete code” for Article 8 claims, an expression said to have “reflected the view that the concluding words of paragraph 398 required the application of a proportionality test in accordance with the Strasbourg jurisprudence, taking into account all the article 8 criteria and all other facts which were relevant to proportionality”. He said in paragraph 52 that the idea that the rules comprised a complete code “appears to have been mistakenly interpreted in some later cases as meaning that the Rules, and the Rules alone, govern appellate decision-making”. He explained the nature of the mistake in these terms:

“53.

… the Rules are not law … and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules …. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought 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, and also consider all factors relevant to the specific case before them, as explained at paras 37-8, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate.”

Mr Buley’s submission is that the approach set out in Hesham Ali is equally applicable to Part 5A of the 2002 Act, so that section 117C(6) is a relevant and important consideration in the Article 8 analysis but it does not displace the proportionality assessment to be made by the tribunal on the facts of the case as a whole. He accepts that Hesham Ali was dealing specifically with the Rules, not with the statutory provisions. He also accepts that Part 5A of the 2002 Act differs from the Rules in being directed specifically to tribunals. But he submits that the requirement in section 117A(2) for the tribunal to “have regard to” the considerations in sections 117B and 117C is precisely consistent with the analysis in Hesham Ali and that this approach preserves the well-established and well understood role of the appellate decision-maker. It leaves the tribunal to perform its established task of determining whether there is a breach of Article 8, instead of substituting a statutory test for that question. Mr Buley emphasises the distinction between, on the one hand, a requirement to have regard to a statement of policy which reflects the view of Parliament and, on the other hand, a requirement to conduct the analysis within a statutory formula.

I would reject that line of argument. In my judgment, the analysis of section 117C(6) in Rhuppiah is correct and should be followed. There is no inconsistency between that analysis and what was said in Hesham Ali. The focus in Hesham Ali, as is conceded, was on the Rules: indeed, Lord Reed noted in terms at paragraph 2 of his judgment that it was unnecessary to consider the amendments to the legislation effected by the Immigration Act 2014, i.e. the provisions of Part 5A of the 2002 Act. Moreover, integral to Lord Reed’s reasoning was that the Rules “are not law … but a statement of the Secretary of State’s administrative practice” and they “do not therefore possess the same degree of democratic legitimacy as legislation made by Parliament” (paragraph 17; see also paragraph 53); and that they do not govern appellate decision-making, although they are relevant to the determination of appeals (paragraph 41). Part 5A of the 2002 Act, by contrast, is primary legislation directed to tribunals and governing their decision-making in relation to Article 8 claims in the context of appeals under the Immigration Acts. I see no reason to doubt what was common ground in Rhuppiah and was drawn from NA (Pakistan), that sections 117A-117D, taken together, are intended to provide for a structured approach to the application of Article 8 which produces in all cases a final result which is compatible with Article 8. In particular, if in working through the structured approach one gets to section 117C(6), the proper application of that provision produces a final result compatible with Article 8 in all cases to which it applies. The provision contains more than a statement of policy to which regard must be had as a relevant consideration. Parliament’s assessment that “the public interest requiresdeportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2” is one to which the tribunal is bound by law to give effect.

None of this is problematic for the proper application of Article 8. That a requirement of “very compelling circumstances” in order to outweigh the public interest in the deportation of foreign criminals sentenced to at least four years’ imprisonment is compatible with Article 8 was accepted in MF (Nigeria) and in Hesham Ali itself. Of course, the provision to that effect in section 117C(6) must not be applied as if it contained some abstract statutory formula. The context is that of the balancing exercise under Article 8, and the “very compelling circumstances” required are circumstances sufficient to outweigh the strong public interest in the deportation of the foreign criminals concerned. Provided that a tribunal has that context in mind, however, a finding that “very compelling circumstances” do not exist in a case to which section 117C(6) applies will produce a final result, compatible with Article 8, that the public interest requires deportation. There is no room for any additional element in the proportionality balancing exercise under Article 8.

Shortly before this judgment was due to be handed down, our attention was drawn to paragraphs 14 and 45 of the judgment of Underhill LJ in Akinyemi v Secretary of State for the Home Department [2017] EWCA Civ 236, which contain some observations on the relationship between section 117A and sections 117B-117C. Although those observations might be taken to suggest a different approach towards section 117C(6) from that favoured above, that point was not directly in issue in Akinyemi; and although Underhill LJ referred to Rhuppiah elsewhere in his judgment, he did not refer to what was said in Rhuppiah concerning the relationship between section 117A(2) and section 117C(6). Nothing in Akinyemi causes me to depart from the view expressed above that the analysis of section 117C(6) in Rhuppiah is correct and should be followed.

There remains the question whether the UT applied section 117C(6) correctly in the two cases before the court. I therefore turn to consider them each in turn.

NE-A is a 31 year old Nigerian national who entered the United Kingdom in December 2006 at the age of 21. He was convicted of a number of offences between 2009 and 2010, for none of which did he receive a custodial sentence. The conviction which triggered the deportation order was in April 2012, for aggravated burglary, for which he was sentenced to six years’ imprisonment. The decision to deport him was made in October 2013. NE-A’s appeal to the First-tier Tribunal (“the FTT”) was allowed, but on further appeal by the Secretary of State the UT held that the FTT’s determination was erroneous in law for failure properly to assess the public interest in deportation, and the determination was set aside. In a fresh determination, dated 2 February 2015, the UT (Upper Tribunal Judges Eshun and O’Connor) substituted a decision dismissing N-EA’s appeal.

In NE-A’s appeal to this court from the decision of the UT, the only live ground is that relating to the construction and application of section 117C(6). Permission to appeal was refused in respect of a ground that the FTT’s determination contained no error of law and should be reinstated. A ground by which it was argued that the UT had erred by failing to attach positive weight to certain matters referred to in section 117B of the 2002 Act is accepted to be foreclosed by the decision in Rhuppiah, but NE-A reserves his position on the point for any further appeal.

The UT listed various unchallenged findings of fact made by the FTT. They included that NE-A came from a dysfunctional family, which was unsurprising given that his parents had left their children in order to come to the UK in 1988 (when NE-A was aged 3 or 4 years) and apparently did not see him again until he entered the UK in 2006 (when he was 21). In summary the FTT found that any impact on his parents were he to be removed to Nigeria would be minimal and possibly a relief to them. But it did accept the evidence of NE-A’s twin brother that he assisted him with job searches, during interviews and any problems arising from his employment thereafter. Therefore, despite an ultimate diagnosis of a schizoaffective disorder, NE-A had successfully been able to hold down a number of jobs in the UK between 2006 and 2011. The FTT also referred to the father’s belated concession that he had spent some two and a half months in Nigeria in the last year visiting school friends, and it rejected the family’s evidence that it made no financial provision for NE-A’s sister who remained in Nigeria with her three children.

The UT went on to recite at length the FTT’s record of the psychiatric evidence. This consisted of a report of Dr Cummings, consultant forensic psychiatrist, who did not consider NE-A to have a mental illness; and a report of Dr Fazel, honorary consultant forensic psychiatrist, who considered NE-A to have a severe mental illness which he characterised as a schizoaffective disorder.

As summarised in the UT’s determination, the submission made to it by NE-A’s then counsel, Mr Zane Malik (who appeared as Mr Buley’s junior in the hearing before us), was that NE-A’s medical condition amounted to an exceptional circumstance making it disproportionate to deport him, having regard to the limited mental health facilities in Nigeria and a lack of clarity as to whether his medication was available there.

The section of the UT’s determination headed “Findings” started as follows:

“31.

The issue before us is whether in the light of all the evidence in the round, including the medical evidence, and having taken into account the preserved findings of fact made by the First-tier Tribunal, there [are] very compelling circumstances over and above those described in paragraphs 399 and 399A sufficient to outweigh the public interest in deportation in this case.

32.

In our assessment of the public interest, we have to consider the amendment by Section 19 of the 2014 Act to the Nationality, Immigration and Asylum Act 2002, which inserted sections 117A-D therein. This [sic] new sections identify the public interest considerations in respect of Article 8 of the ECHR. The considerations in Section 117 mirror the considerations in paragraph 398 of the Immigration Rules.”

The UT then set out the text of paragraph 398 and of sections 117B and 117C. Having found that paragraphs 399 and 399A did not apply, it stated that therefore “in this case we are considering whether the appellant’s circumstances are very compelling” (paragraph 36). It referred to the psychiatric evidence and noted that NE-A’s case “rests predominantly on his mental condition and the medication he is currently taking, the care package which it is said would not be available to him if he were deported to Nigeria” (paragraph 37). It found that NE-A’s offence was extremely serious, which was why he was given a term of imprisonment of six years. It went on:

38.

… We find that Section 117C reflects the Immigration Rules in Rule 398. There needs to be very compelling circumstances.”

Later in its findings, at paragraph 42, the UT came back to the psychiatric evidence and stated that on balance it was prepared to accept Dr Fazel’s psychiatric assessment of NE-A. The determination continued:

“43.

The appellant is currently dependent on the medication he is prescribed by Dr Fazel, that is depot antipsychotic drugs with Risperdal Consta once a fortnight for another eighteen to twenty four months. Dr Fazel said that the appellant only partially responded to Risperidone and Quetiapine had little effect on him. Dr Fazel states that his prognosis will worsen if he is subject to psychosocial stressors and illegal drugs and without medication he would relapse and his mental state would deteriorate to an extent that he would be at risk to himself and others. She also said that the appellant needs regular follow-up by mental health nurses who would administer the depot. He would need two-three monthly psychiatric reviews but does not currently need psychiatric hospitalisation, which is about the only thing she and Dr Cumming[s] agreed on. Her prognosis is that if the appellant remains on his current medication he could return to employment and independent living on release from prison, although it is not possible to be certain. Dr Fazel’s prognosis suggests that the appellant is not likely to be at risk of re-offending so long as he remains on his current medication.

44.

We know from the COI Report that Risperid[o]ne is available in Nigeria as well as Quetiapine. There was no evidence from the appellant that Depot Risperdal Consta is not available in Nigeria. From the COI Report we know that there are federally funded psychiatric hospitals and state-owned mental hospitals in Nigeria. Therefore on the evidence before us we find that the appellant has not demonstrated that he would not be able to obtain the medication that he requires, or medication equivalent, for his purposes, to it; and he should be able to obtain medical treatment from any of the psychiatric hospitals in Nigeria for his mental condition. We do not know what Dr Fazel means by ‘psychosocial stressors’. The appellant has a sister in Nigeria. The Tribunal did not believe that the family in the UK were not financially supporting the sister. Consequently we find that with the support of his sister and financial help from his family in the UK the appellant should be able to keep away from illegal drugs and find employment to enable him lead an independent life.

45.

Looking at all of the appellant’s circumstances as a whole, and taking full account of his medical condition and all that we say about that above, the fact that he has family in the United Kingdom with whom he has a family life, and the length of the appellant’s stay in the United Kingdom and the fact he had Indefinite Leave to Remain here, given the nature of his offending and the length of sentence he received for it. In all the circumstances of this case we are not satisfied that there are very compelling circumstances that outweigh the public interest in the appellant’s deportation.

45.

Accordingly we dismiss the appellant’s appeal.”

Mr Buley submits that the UT saw its task as being to identify “very compelling circumstances” in the abstract and that it lost sight of the fact that the exercise to be conducted was ultimately an Article 8 balancing exercise. It is submitted that this can be seen from the UT’s concentration on NE-A’s mental health needs and its failure to address itself to the family life aspect of NE-A’s case, in particular to the role of his twin brother, to which the FTT had attached great importance. The FTT accepted that the twin brother visited NE-A on average twice a month throughout his imprisonment and that he had assisted NE-A in relation to job searches, interviews and problems arising from employment, such that NE-A “was only able to function and obtain employment with the assistance of his twin brother” (FTT paragraph 100). It accepted further that NE-A needed monitoring and support in order to ensure that he took his medication and that “this type of family support would be unavailable to the appellant in Nigeria particularly from the support given to him by his twin brother” (FTT paragraph 114). And in the final sentence of its findings the FTT stated that “Dr Fazel recognised that an important part of his progress is family support and this support largely received from his siblings rather than his parents is what has tipped the balance in the appellant’s favour in my judgment” (FTT paragraph 115). Mr Buley submits that this critical element of the balancing exercise in relation to family life is missing from the UT’s determination and that it may be inferred that this is because the UT fell into error as to the true nature of the exercise to be conducted. He refers to the judgment of the European Court of Human Rights in Paposhvili v Belgium (Application no. 41738/10, judgment of 13 December 2016) as illustrating the potential importance of the loss of support from the family in an Article 8 case where the applicant suffers from ill health and it is alleged that removal will result in a deterioration of his condition.

I would reject Mr Buley’s submissions. I do not accept that the UT’s determination was affected by any material legal error. The tribunal’s findings contain numerous references to Article 8 and, when read as a whole, make it amply clear that the tribunal understood the Article 8 context within which paragraph 398 of the Rules and section 117C(6) of the 2002 Act fell to applied. The tribunal was not considering the question of “very compelling circumstances” in the abstract but was asking itself whether there existed circumstances sufficient to outweigh the public interest in deportation. It is open to possible criticism for putting paragraph 398 of the Rules at the forefront and referring to section 117C(6) as a “mirror” or “reflection” of that provision: that is to give insufficient recognition to the content of section 117C(6) and the role of the section in the appellate decision-making process, as explained in Rhuppiah. But if it erred in that way, the error was not a material one, given the tribunal’s dismissal of NE-A’s appeal on the basis of its finding that there were no very compelling circumstances that outweighed the public interest in deportation.

The focus of paragraphs 43-44 of the tribunal’s determination is explained by the way the case was put on behalf of NE-A, to the effect that the medication and care he needed for his psychiatric condition would not be available in Nigeria. The reasons given for rejecting that case included a finding, which is not itself challenged, that he would have the support of his sister in Nigeria and financial help from the family. The support given by his twin brother in the UK, although the tipping point for the FTT, evidently did not feature prominently (if at all) in the argument before the UT. But the UT referred to it specifically in its summary of facts, and it was encompassed within the general reference in paragraph 45 to family life in the UK. It was taken fully into account in that paragraph when looking at “all of the appellant’s circumstances as a whole” and forming an overall judgment as to whether there were very compelling circumstances that outweighed the public interest in deportation. Thus, the submission that the UT failed to address itself to the family life aspect of the case is without foundation.

I would therefore dismiss NE-A’s appeal.

HM is a 37 year old Ugandan national who arrived in the UK in October 1990. In February 1998 he was convicted of murder and was sentenced to life imprisonment with a recommended tariff of 10 years, reduced on appeal to 9 years. He was released on licence in February 2006. He met his partner in 2005 following transfer to an open prison. She has a 13 year old child (K) from a previous relationship and has two children by HM, now aged respectively 10 years and 7 years.

In January 2008 the Secretary of State decided to make a deportation order in respect of HM. HM’s appeal to the tribunal was initially successful but was dismissed in January 2009 by Upper Tribunal Judge Peter Lane on a reconsideration resulting from a judicial review by the Secretary of State. The deportation order was made in April 2009. This was followed by an unsuccessful application by HM on human rights grounds. Further representations on human rights grounds were made in May 2012. The decision rejecting those representations and certifying the claim as clearly unfounded was the subject of a judicial review claim by HM which resulted in the cancellation of removal directions. In January 2014 the Secretary of State issued a further notice of liability to deportation, giving HM the opportunity to rebut the presumption under section 72 of the 2002 Act that his presence in the UK would constitute a danger to the community. He submitted further representations regarding this, and the earlier judicial review claim was withdrawn by consent.

In March 2014 the Secretary of State made a decision refusing to revoke the deportation order. In a determination dated 30 June 2014 the FTT allowed HM’s appeal against that decision. On further appeal by the Secretary of State, the UT found that there was a material error of law in the FTT’s determination; but in a fresh determination dated 10 March 2015 the UT (Upper Tribunal Judge Moulden) reached the same decision, allowing HM’s appeal against the refusal to revoke the deportation order. The Secretary of State now appeals to this court against that determination of the UT.

Paragraphs 12-13 of the UT’s determination set out paragraphs A362, 390, 390A and 398-399A of the Rules (in the version in force with effect from 28 July 2014) and sections 117A-117D of the 2002 Act (mistakenly described as provisions of the Immigration Act 2014). The determination continued:

“14.

The claimant has raised Article 8 grounds in the context of deportation under Part 13 of the Rules with the consequence that his claim under Article 8 can only succeed where the requirements of the Rules as at 28 July 2014 are met even though the deportation order was served on him before then. The Rules on deportation represent a complete code on Article 8 (MF (Nigeria) …) and must now be read in the light of the provisions of the 2014 Act.

15.

Because of Paragraph 398(a) the deportation of the claimant is conducive to the public good and in the public interest because he has been convicted of an offence for which he has been sentenced to a period of at least four years imprisonment. Paragraphs 399 and 399A do not apply with the result that it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.

16.

Under paragraph 117B of the 2014 Act [sic] this is a case where the claimant is a foreign criminal who has been sentenced to a period of imprisonment of at least four years. As a result the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.”

In paragraph 17 of the determination, the UT judge adopted a passage in the FTT’s determination setting out findings of Upper Tribunal Judge Lane in the January 2009 determination which, in the application of Devaseelan principles, the FTT had taken as a starting point. It may be noted that in rejecting HM’s Article 8 claim, Upper Tribunal Judge Lane placed very considerable weight on the public interest in deportation even though the determination preceded by several years the introduction of paragraphs 398-399A of the Rules, let alone the provisions of Part 5A of the 2002 Act.

In paragraph 18 of the determination, the UT judge said that he adopted the FTT’s record of additional evidence since the hearing before Upper Tribunal Judge Lane, and the FTT’s findings of fact. Those findings of fact, as set out in the FTT’s determination, comprised first a list of factors considered in deciding what would be in the best interest of HM’s stepson K and his own two children, and secondly a list of factors considered in deciding whether there were exceptional circumstances (the language of paragraph 398 of the version of the Rules in force at the time of the FTT’s determination).

The contents of the first list were: (1) K was just 10 years old and had a diagnosis of Asperger’s Syndrome and ADHD; he regarded HM as his father; (2) HM had two children of his own, then aged 7 and 4; (3) all the children were British; (4) HM lived in a settled home environment with the children and their mother with whom he had been in a relationship since 2005; (5) HM and his partner worked and provided for the three children; (6) HM took his parental role seriously and was supportive of his partner; (7) K paid particular attention to HM and responded better to him than to K’s mother; (8) HM’s partner and the children would not move to Uganda if HM were deported, because of K’s educational and medical needs; (9) if HM were deported to Uganda there was a real possibility that his partner would not be able to continue her work, and certainly not her current hours; (10) the partner did not know how she would cope with the stress of being a single parent to three children one of whom had extremely challenging behaviour; and (11) there was evidence that changes to the family structure could have a seriously detrimental impact upon K’s behaviour and well being. Considering those factors overall the FTT found that the best interests of the children lay in HM remaining with them and the family unit continuing as it was.

The second list continued the numerical sequence: (12) HM was released from prison in March 2006 but was not served with a notice of intention to deport until February 2008; (13) the Secretary of State took no steps to deport HM between July 2009, when his initial appeal rights were exhausted, and May 2012; (14) HM came to the UK as an 11 year old and was now 35; (15) he was 17 when he committed the crime for which he was convicted; (16) he was found guilty of murder, a very serious crime; (17) the risk of his re-offending was low; (18) he had worked since his release from prison and had a good reference from his employer; (19) he volunteered at a school offering help and advice to 14-17 year olds and was part of a mentoring programme for troubled teenagers who had been expelled from school or those who had had a troubled childhood; and (20) he had no family ties with Uganda other than a brother there.

In paragraph 19 of the determination, the UT judge said that it was not suggested that there had been any great change in HM’s circumstances since the FTT heard the appeal, though there were two further reports the contents of which were not disputed; some further time had passed; and the provisions of the new Rules and the 2014 Act had come into effect and had to be considered.

The UT judge said in paragraph 20 that any delays by the Secretary of State were relevant only to the extent that HM’s ties to the UK and his family life had deepened over time. The FTT’s reliance on the Secretary of State’s delays as significantly weakening the case for deportation had already been held by the UT to be a material error of law.

The UT’s determination concluded with the following passage:

“21.

The claimant’s crime was the most serious known to the criminal law. It must excite deep revulsion in society. There is a need for public confidence that such offenders will be properly punished and dealt with including by removing them from the country. Other potential foreign criminals need to be deterred. The judge’s sentencing remarks do not shed much light on the circumstances of the offence, although I note that the claimant was one of five people convicted four of whom were the main participants in an armed attack on a young man in his own home. The sentencing remarks contain no recommendation for deportation. The claimant was sentenced to life imprisonment with a tariff of 10 years which was subsequently reduced to 9 years on appeal. He was released on licence on 6 March 2006. The public interest in deporting foreign criminal[s] convicted of such a crime must be at or very close to the top of any scale.

22.

Against this recognition of the strength of the public interest must be set the factors which favour the claimant. I have already adopted certain findings of the FTTJ and Upper Tribunal Judge Lane. In addition and in summary the claimant has turned his life around since leaving prison. He has become a hard-working and reliable member of the community who seeks to mentor young people who may have been in prison or risk ending up there. He is a caring family man who helps to support three children one of whom has challenging special educational needs (K). He has been diagnosed with Asperger’s Syndrome and Attention Deficit Hyperactivity Disorder. The reports now before me show there is likely to be a serious deterioration in his condition if the claimant is removed. The claimant is particularly good at helping him through problem periods and coping with his difficulties. The other two children, whilst they do not have their elder sibling’s difficulties, are likely to suffer from the knock-on effect of the deterioration in their elder brother’s sometimes violent behaviour which is likely to follow the breakup of the family by the removal of the claimant. It would be in the best interests of all three children for the claimant to remain in this country with the children. It is accepted that the family cannot leave the country with him. Without the joint incomes of the claimant and his partner it is likely that they will have to give up their home with the increased risk of damaging effects on K. The claimant, who was a teenager when convicted of murder, has had no other convictions and is at low risk of reoffending.

23.

Like the FTTJ I find this [a] difficult case with a difficult balancing exercise. Looking at all the evidence in the round and notwithstanding all that I have said about the weight to be given to the public interest I find that the claimant has established that there are exceptional circumstances which outweigh that interest.

…

25.

Having set aside the decision of the FTTJ I remake that decision and allow the claimant’s appeal on Article 8 human rights grounds.”

It might be argued that, within the framework established by the Rules and Part 5 of the 2002 Act for consideration of claims under Article 8 in deportation cases, the factual matters relied on by the UT could not reasonably have led to the conclusion that HM’s claim succeeded. But the Secretary of State’s case is not put on the basis of an irrationality challenge. The grounds of appeal against the UT’s determination are that the tribunal misdirected itself in the application of Part 5A of the 2002 Act and that it misdirected itself or took into account an irrelevant consideration in relying on the absence of a recommendation by the sentencing judge that HM be deported. As the case was developed in Mr Mitchell’s oral submissions, the grounds tended to merge together and reliance was placed on a series of points as indicating an unduly casual approach by the tribunal and leading to the overall impression that the tribunal did not direct itself properly to the relevant tests.

The first concern is that key passages of the determination use the language of “exceptional circumstances”, suggesting that the judge’s focus was on the pre-28 July 2014 version of the Rules rather than on the current version or on sections 117A-117D of the 2002 Act. Thus, it is stated in paragraph 15 of the determination that “it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors”, and the conclusion at paragraph 23 is that “the claimant has established that there are exceptional circumstances which outweigh [the public] interest”. It is true that in MF (Nigeria) the former “exceptional circumstances” provision was equated with a requirement of “very compelling circumstances” to outweigh the public interest in deportation (see paragraph 9 above). It is also true that the UT’s determination sets out the text of the current version of the Rules and of sections 117A-117D and also refers at paragraph 16 to the language of section 117C(6) (wrongly attributed to section 117B) and refers at paragraph 19 to the need to consider the new version of the Rules and “the 2014 Act”. The repeated use of the language of the former version of the Rules is nonetheless a worrying feature of the determination. (In his written skeleton argument, Mr Mitchell pointed to paragraph 397 of the current version of the Rules, which provides that if deportation would not be contrary to the Refugee Convention or the Human Rights Convention “it will only be in exceptional circumstances that the public interest in deportation is outweighed”. As stated in Chege (section 117D – Article 8 – approach) [2015] UKUT 00165 (IAC), at paragraph 33, this provides the Secretary of State with a residual discretion to grant leave to remain in exceptional circumstances where an appellant cannot succeed under Article 8. I am satisfied, however, that the language of “exceptional circumstances” in the UT’s determination in MH’s case was not drawn mistakenly from paragraph 397. The origin of its use in this case lay plainly in the pre-28 July 2014 version of paragraph 398.)

The next matter of concern is a degree of sloppiness in the UT’s citation of the relevant sections of Part 5A of the 2002 Act. Paragraph 13 of the determination refers to “paragraphs” 117A-117D of “the Immigration Act 2014”, rather than to the sections of the 2002 Act as inserted by the 2014 Act; paragraph 16 of the determination refers to “paragraph 117B of the 2014 Act” rather than to section 117C of the 2002 Act; and paragraph 19 refers to “the provisions of … the 2014 Act” rather than to the provisions of Part 5A of the 2002 Act. In the ordinary course one would not be troubled by errors of this kind, but in the present case they contribute to the impression that the judge was not focusing sufficiently on the content and effect of the relevant statutory provisions.

There is of course nothing wrong in principle with the UT adopting the FTT’s findings of fact, but the way in which it was done in this case is a further cause of concern. The FTT’s findings of fact do not provide a ready basis for a finding of very compelling circumstances within section 117C(6): the FTT’s own finding of a breach of Article 8 rested, as I have said, on a material legal error in treating the Secretary of State’s delays as very significantly weakening the case for deportation. Yet there was very little additional material on which the UT could rely. Moreover, the statement at paragraph 19 of the UT’s determination that the provisions of the 2014 Act (i.e. Part 5A of the 2002 Act) had come into effect and needed to be considered appears to have been no more than lip service to those provisions. Thus, the reasoning in paragraph 22 of the determination, quoted in full above, concentrates largely on the children without any apparent recognition of the fact that the position of children is dealt with in section 117C(5) (whereby Exception 2 applies where the foreign criminal has a genuine and subsisting parental relationship with a qualifying child and the effect of his deportation on the child would be unduly harsh) or, more importantly, of the fact that section 117C(6) provides that the public interest requires deportation unless there are very compelling circumstances “over and above those described in Exceptions 1 and 2”. There is nothing to show that the tribunal understood the true effect of the changes in the statutory regime since the time of the FTT’s determination.

Of equal significance is what is said about the public interest in paragraph 21 of the UT’s determination, also quoted in full above. The paragraph ends with the unexceptionable proposition that the public interest in deporting a foreign criminal convicted of the crime of which HM was convicted “must be at or very close to the top of any scale”. But it is difficult to see why the UT thought it necessary to go into the detail in this paragraph if it had clearly in mind the terms of section 117C(6), that in the case of a foreign criminal sentenced to at least four years’ imprisonment the public interest requires deportation unless there are very compelling circumstances over and above those described in Exceptions 1 and 2.

A particular aspect of this concern is the UT’s statement that the Crown Court judge’s sentencing remarks “contain no recommendation for deportation”. The UT had specifically requested a copy of the sentencing remarks, as appears from paragraph 4 of the determination. But the absence of a recommendation for deportation was irrelevant to the Secretary of State’s decision to deport and to the tribunal’s assessment of whether deportation would be in breach of Article 8. Miss Beach, for HM, does not contend otherwise. Her submission is that the UT was simply recording the absence of a recommendation for deportation as a fact and was not placing any weight on it. For my part, I do not think that the UT’s reference to the absence of a recommendation for deportation amounts to a distinct legal misdirection, as contended in the Secretary of State’s grounds of appeal, but it remains open to objection as forming part of an analysis that the UT did not need to engage in and that suggested an old-style approach towards Article 8 rather than the approach required under Part 5A of the 2002 Act.

Those various points add up, in my judgment, to the clear conclusion that the UT erred materially in law in reaching its decision and that the Secretary of State’s appeal should therefore succeed.

For the reasons given above, I would dismiss NE-A’s appeal but would allow the Secretary of State’s appeal in HM’s case and would remit that case to the UT for a fresh determination.

I agree.

I also agree.