Nguyen v The Secretary of State for the Home Department

The Respondent to this appeal, Huu Dinh Nguyen, is a national of Vietnam born on 30 October 1985. He came to this country illegally in or about March 2002, when he was aged sixteen. He came to the attention of the authorities in November 2002 and was served with a notice requiring him to leave the country. He did not do so. In late 2004 he started a relationship with another Vietnamese national, Huyen Thu Trinh (“Huyen”). Huyen was at that point married to a British citizen, Tam Van Hoang (“Tam”), by whom she was pregnant. The Respondent and Huyen went through an unofficial marriage ceremony in February 2005. Huyen’s daughter by Tam, Amy, was born in August 2005 and has always lived with her mother and the Respondent. The Respondent and Huyen have since had a son, Jimmy, who was born in September 2007. They were legally married on 3 September 2013.

On 6 February 2009 the Respondent pleaded guilty to being concerned in producing a class C controlled drug and he was sentenced to two years’ imprisonment. On 28 October 2009 a deportation order was made. After a complicated sequence of events into which it is unnecessary to go, on 31 October 2013 the Secretary of State, who is the Appellant in this appeal, made a decision not to revoke that order. The Respondent appealed against that decision.

The Respondent’s appeal was heard by the First-tier Tribunal, comprising FTTJ Stokes and another tribunal member whose name has unaccountably been omitted from the record of the proceedings. By a determination promulgated on 25 June 2014 his appeal was allowed. The Tribunal found that his deportation would be in breach of the rights of himself and his family – that is, his wife Huyen, his step-daughter Amy and his son Jimmy – under article 8 of the European Convention on Human Rights.

The Secretary of State appealed to the Upper Tribunal. The appeal was heard by UTJ Allen. By a determination dated 16 October 2014 the appeal was dismissed.

This is an appeal against that decision. The Secretary of State has been represented before us by Mr Neil Sheldon and the Respondent by Mr Michael Harris. Neither appeared in either of the tribunals below.

The Respondent is a “foreign criminal” as defined by section 32 (2) of the UK Borders Act 2007 because he has been convicted of a criminal offence for which he was sentenced to at least twelve months in prison. It follows, by virtue of section 32 (4), that his deportation is conducive to the public good. It also follows, by virtue of section 32 (5), that the Secretary of State was obliged to make a deportation order unless one of the exceptions set out in section 33 applied. The only relevant exception here is that provided by sub-section (2) (a), namely that his deportation would “breach a person’s Convention rights”: the Convention right which is in play is article 8, which protects the right to respect for family and private life.

The European Court of Human Rights has consistently recognised that there is a strong public interest in the deportation of foreign criminals, but also that in some cases that interest may be outweighed by the interests protected by article 8. The Secretary of State has sought in the Immigration Rules to reflect the effect of the Strasbourg case-law. (Footnote: ¹ ) The core provisions relating to deportation decisions are paragraphs 398-399A; and the effect of paragraph 390A is that those provisions apply equally to the question whether to revoke such a decision.

Paragraph 398, as it stood at the material time, read as follows:

As will in due course appear, it is common ground that neither gateway applies in the present case, but I need nevertheless to set out paragraph 399, which at the material time read as follows:

In MF (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 1192, [2014] 1 WLR 544, this Court, at paras. 38-44 (pp. 560-561), gave guidance as to the correct approach to the provision in paragraph 398 that in cases which did not fall within paragraphs 398 or 399A the public interest in deportation would only be outweighed “in exceptional circumstances”. In summary, it held that that phrase required the decision-maker to carry out the proportionality exercise required by article 8, “weighing the factors which favour deportation against those which do not” (para. 38). That will incorporate factors mentioned in the Strasbourg case-law which are not already taken into account in the formulation of the paragraph 398 and 399 gateways, including “what is in the best interests of the child, the age of the offender at the date of entry into the UK and at the date of the offending, the length of time since the offence, and the offender’s subsequent conduct” (see para. 39). The Court held that the effect of the reference to “exceptional circumstances” was to emphasise that in that balancing exercise great weight had to be given to the public interest in deporting foreign criminals whose cases do not fall within the terms of paras. 399 or 399A (see para. 40). The intention was not to impose a test of exceptionality as such but to recognise that “the scales are heavily weighted in favour of deportation and something very compelling (which will be ‘exceptional’) is required to outweigh the public interest in removal” (para. 42). It summarised the correct approach as follows:

As will appear, the reference to the new Rules – that is, paragraphs 398-399A – constituting a “complete code”, in the sense that the proportionality evaluation required by article 8 was comprised in the reference to “exceptional circumstances”, has given rise to some difficulty, but the Court made clear that ultimately the point was not of substantive importance, because it continued, at para. 45 (p. 561 E-F):

At the time of the decisions of the FTT and the UT in this case MF (Nigeria) was the leading authority on the correct approach to paragraphs 398-399A, and in particular to the exercise required where paragraphs 399 and 399A did not apply. The issue has now been considered by the Supreme Court in Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. I should set out the relevant parts of the judgment of Lord Reed, with whom the other members of the Court agreed, in a little detail.

At paras. 2-21 of his judgment (pp. 4803-10) Lord Reed sets out the relevant legislation, including paragraphs 398-399A of the Immigration Rules (which were in the same terms at the material time as those with which we are concerned). I need not refer to the detail, save to note that at para. 14 (p. 4806) he says that sections 32 and 33 of the 2007 Act

Lord Reed then, at paras. 24-35 (pp. 4810-14), summarises the effect of the Strasbourg jurisprudence. At para. 26 he identifies a number of criteria referred to in the authorities as relevant to the decision whether it is proportionate to expel a migrant settled in the host country who committed an offence. I need not set these out here, though I note that they are broadly similar to those mentioned by this Court in MF (Nigeria). At paras. 27-29 he considers to what extent the situation is different where the migrant in question is not settled, including where he has entered the country illegally, with particular reference to Jeunesse v The Netherlands(2014) 60 EHRR 17.

He then turns, under the heading “Administrative Decision-Making”, to how paragraphs 398-399A are to be understood in the light of the Strasbourg jurisprudence (paras. 35-38 (pp. 4814-6)). At para. 37 he summarises the reasoning in MF (Nigeria). He continues, at para. 38:

In the following section, “Appellate Decision-Making” (paras. 39-50 (pp. 4816-9)), Lord Reed considers the proper approach of the Tribunal on an appeal against a deportation decision. At para. 46 he points out that paragraphs 398-399A represent a policy decision by the responsible decision-maker as to the weight to be given to the public interest in the deportation of offenders in particular categories of case and that that policy judgement has been approved by Parliament; accordingly, while tribunals must make their own assessment of the proportionality of deportation in any particular case, they should in doing so attach great weight to the assessment embodied in the Rules. He endorses, at paras. 47-49, “the established method” of carrying out the proportionality assessment in the cases of both foreign criminals who are lawfully present and those who are not. He concludes, at para. 50:

At paras. 51-53 of his judgment Lord Reed addresses what he says is a misconception in some of the post-MF authorities that the Court’s reference to “a complete code” means that “the Rules, and the Rules alone, govern appellate decision-making”. This does not, however, represent a departure from what was said in MF (Nigeria). Rather, he is emphasising the jurisprudential point that the Immigration Rules do not, as such, constitute law but represent a statement of the Secretary of State’s administrative practice – a point more fully developed earlier in his judgment (see para. 17) – and thus that they cannot as such cannot govern the determination of appeals. Nevertheless, he continues:

In short, therefore, the Supreme Court in Ali endorsed, though on a more fully explained basis, the approach to appeals against decisions to deport foreign criminals taken by this Court in MF (Nigeria).

As will appear, the primary submission of the Secretary of State depends not so much on any alleged explicit misdirection of law by the FTT but rather on what is said to have been a failure by it to apply its own directions, which failure is said to be demonstrable from the structure of the material parts of its determination. It is accordingly necessary that I summarise the decision in a fair amount of detail.

Paras. 1-14 of the determination set out the procedural history and the applicable provisions of the 2007 Act and the Immigration Rules in unexceptionable terms. I should, however, mention one wrinkle. The Secretary of State’s decision to refuse to revoke the deportation order inaccurately recorded that the order in question was made on 31October 2013, i.e. the same date as the decision to revoke it. At the start of the hearing the Home Office Presenting Officer was asked for clarification. She said, wrongly, that there was indeed a fresh order made on 31 October 2013 and that the appeal was an appeal against that order. The Tribunal proceeded on that basis and accordingly made no reference to the provisions relating to revocation. Fortunately, this mistake (for which the Home Office rather than the Tribunal must take the blame) made no difference since, as noted at para. 7 above, the rules relating to revocation incorporate the rules applicable to the original decision.

Paras. 15-31 of the determination summarise the evidence. I need not refer to any part of this section, save to note that the Respondent, Huyen and Tam all gave evidence and were cross-examined.

Paras. 32-43 of the determination contain careful findings of fact, none of which is in issue in this appeal. The key findings can be summarised as follows:

The Respondent came to the UK because his grandmother paid for him to be brought here. He was “controlled by the people who were prepared to feed and house him in return for him doing whatever they told him”. (I am bound to say that that looks very like a finding that he was a victim of trafficking, but the case has at no stage been put on that basis.)

The offence for which the Respondent was sent to prison, which was committed when he was aged 23, was his only serious offence. He had been told by the people controlling him to clean and look after a house which was being used as a cannabis factory. He had nothing to do with the cultivation of the plants and he was arrested on the very first day that he went to work there. He had not committed any subsequent offence.

In December 2013 Huyen and Jimmy were granted leave to remain valid until 27 June 2016.

The Respondent’s marriage to Huyen was genuine and subsisting. She had been in employment, working in a nail bar in Salisbury, since she was granted leave to remain; and since then (if indeed not before) he has been the primary carer for both children.

Amy is a British citizen. As to her relationship with her father, Tam, the Tribunal found that he saw her at least once a week and perhaps more often during school holidays. It continued:

Jimmy is not a British citizen but, as noted, he enjoys limited leave to remain equivalent to his mother’s.

Paras. 44-51 are headed “The Immigration Rules”. The Tribunal approaches systematically the effect of paragraphs 398-399A of the Rules. It starts by acknowledging that the Respondent’s case falls within paragraph 398 (b) and accordingly proceeds to examine whether either paragraph 399 or paragraph 399A applies. In summary:

The Tribunal’s conclusion from that analysis, at para. 51, reads:

The remainder of the determination, paras. 52-66, is headed “Article 8 ECHR”, and is directed to the question whether the Respondent could rely on article 8 notwithstanding that, as it had concluded in the previous part of its determination, his case did not fall within the terms paragraphs 399 and 399A. There are no further headings and although the Tribunal again proceeds in a systematic way the structure of its reasoning needs to be identified with a little care. I can summarise it as follows.

At paras. 52 the Tribunal gives an accurate summary of the effect of MF (Nigeria), quoting in full the passages which emphasise the great weight to be given to the public interest in deporting foreign criminals, that “the scales are heavily weighted in favour of deportation”, and that “something very compelling” is required to outweigh the public interest in deportation.

At para. 53 it sets out, by reference to Secretary of State for the Home Department v Gulshan[2013] UKUT 00640 (IAC), the conventional two-stage approach in cases generally (i.e. not only those concerning the deportation of foreign criminals) where article 8 is relied on “outside the Rules”. As formulated in Gulshan, that required it as a first step to decide whether it was “arguable” that the Respondent could advance such a case; and it found at the beginning of para. 54 that it was. (That “first step” is in fact unnecessary – see Singh v Secretary of State for the Home Department[2015] EWCA Civ 74, at para. 64 – but nothing turns on that.) It accordingly directed itself that it should carry out the five-stage assessment outlined in R v Secretary of State for the Home Department ex p Razgar[2004] UKHL 27, [2004] 2 AC 368, though modified “as stated in ZH (Tanzania)” (Footnote: ³ ) so as to reformulate the final – proportionality – question as: “Is removal necessary, proportionate and a fair balance between the right to respect for the family life of the appellant and the child and the particular public interest in question ?” (Footnote: ⁴ ) .

The Tribunal then finds, at para. 55, that the first four Razgar steps are satisfied, so that the only remaining issue is proportionality. As to that, it begins by reminding itself at para. 56 of the observation of Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159, that it will rarely be proportionate to make an order which has the effect of severing a genuine and subsisting relationship between parent and child (see per Lord Bingham at para. 12 (p. 1188 E-F)). It then, at para. 57, reminds itself of the duty imposed by section 55 of the Borders Citizenship and Immigration Act 2009 to treat the best interests of the children as a primary consideration when carrying out the proportionality assessment. Pursuant to that duty it proceeds to assess what is in the best interests of both Amy and Jimmy. As regards Amy, it says, at para. 58:

At para. 60 the Tribunal sets out further factors which it is required to take into account in performing the necessary balancing exercise. This reads:

The Tribunal then proceeds to review in turn the factors weighing for and against the Respondent in the proportionality balance.

It starts, at para. 61 with the factors weighing in favour of the Respondent’s deportation. The paragraph begins:

The Tribunal then turns to the factors weighing against deportation. These are enumerated at paras. 62-64. Paras. 62-63 deal with what is in the best interests of Amy and Jimmy, which the Tribunal says that it has made, in accordance with section 55 of the 2009 Act, “our primary consideration”. It relies on its previous findings in that regard, though it also refers to the decision of the CJEU in Ruiz Zambrano (C-34/09), [2012] QB 265 (because Amy is British) and to the principle stated by Lord Hodge in Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690, that “a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent” (see para. 10 (7) (p. 3695B)). Para. 64 identifies some further factors. These are rather a mixed bag, and there is an element of repetition, but the principal points made are that there were mitigating circumstances attending the Respondent’s conviction and that he has committed no further offences in the five years since his release.

The thrust of paras. 62-64 is that the balance comes down against deportation. That is made explicit in paras. 65-66, which read:

I should like to say that, right or wrong, the Tribunal’s reasoning is conspicuous for the thought and care that evidently went into it.

I need not summarise the reasoning of the UT, since the only issue for us is whether there was any error of law in the decision of the FTT.

The original grounds of appeal filed with the Appellant’s Notice were those relied on in the prior application to the UT itself for permission to appeal to this Court. They take the form of a diffuse and unstructured four-page letter drafted by an official in the Home Office. The Treasury Solicitor did not respond to an invitation from the Civil Appeals Office to provide properly pleaded grounds of appeal. That is very regrettable. In order to assess whether permission to appeal should be granted this Court needs a succinct pleading which identifies in a focused manner the precise grounds of appeal relied on. In the result Sir Maurice Kay found it necessary to direct an oral permission hearing. In his submissions at that hearing Mr Sheldon formulated two grounds of appeal, on the basis of which Jackson LJ was persuaded to give permission. The substance of those grounds can be seen from his judgment, but they were never formally pleaded.

In the event things have moved on. The first ground of appeal was, in essence, that since the Rules were a “complete code” the FTT had been wrong in principle to carry out a separate article 8 assessment. In his oral submissions before us Mr Sheldon accepted that that ground had been undermined by the decision of the Supreme Court in Ali, and indeed that the Tribunal’s self-direction at para. 52 of the determination as to the correct approach in foreign criminal cases was unimpeachable.

However Mr Sheldon maintained what was, broadly, his original second ground, namely that, although the Tribunal was correct in principle to adopt a two-stage approach, the details of its reasoning at the second stage showed that it had misunderstood the nature of the exercise in a case involving the deportation of a foreign criminal. He submitted that, once the Tribunal had concluded that the Respondent could not satisfy the requirements of paragraphs 399 and 399A, the only question for it was whether there were in his case “very compelling circumstances” capable of outweighing the public interest in his deportation. Instead, however, of confining itself to that question the Tribunal had proceeded at paras. 52-66 of the determination – or, more accurately, from para. 53 onwards – to carry out a full-dress article 8 assessment, referring in the process to a number of authorities (for example ZH (Tanzania), EB (Kosovo) , Beoku-Betts and Zoumbas ) which were not concerned at all with the case of foreign criminals. That was not only unnecessary but distracted the Tribunal from considering the only essential question and diluted the weight that it was required to give to the strong public interest in the deportation of the Respondent.

Mr Sheldon also had a more particular point about the references made by the Tribunal at paras. 62 and 65 to having made the interests of the children “our primary consideration” and to having attached “primary importance” to those interests. That language tends to suggest that it had fallen into the error of treating the interests of the children as not merely a primary consideration but the primary consideration: as to this, see the judgment of Laws LJ in SS (Nigeria) at para. 44 (p. 1016 E-F).

Mr Sheldon disavowed any submission that the Tribunal’s decision was perverse, i.e. that it was impossible on the facts of this case to find that the test under paragraph 398 was satisfied; and he accordingly made it clear that he was seeking only a remittal of the appeal. But he submitted that the Tribunal had reached its conclusion by the wrong route and that it could not stand.

Mr Sheldon advanced his submissions most persuasively, but in the end I would not accept them. My reasons are as follows.

As regards the Tribunal’s overall approach, there was nothing wrong in it starting its proportionality exercise by a full and careful assessment of the factors going into the “interference with family life” side of the scales: on the contrary, that is an essential part of the exercise, and it will look much the same whether the public interest in the other pan is the general public interest in maintaining a firm and fair system of immigration or the more specific and even weightier public interest in the deportation of foreign criminals. The important thing is that in the final section of the analysis, where it struck the necessary balance, the Tribunal quite explicitly reminded itself of the great weight to be attached to that interest: see in particular paras. 60, 61 and 65.

The way that the Tribunal dealt with the interests of the children has given me some pause. I see force in the criticism that it was inappropriate for it in the course of its assessment to refer to authorities which emphasised the weight to be given to the preservation of family life, particularly where children are affected, in a non-deportation context. In particular, I agree that the observations quoted from EB (Kosovo) and Zoumbas were inapt to the present case, since it is well-recognised that in a deportation context the splitting of families may well be proportionate, however contrary to the best interests of the children that may be. Clearly also the way in which the Tribunal expressed the obligation in section 55 of the 2009 Act is calculated to set alarm bells ringing. But it is necessary to concentrate on the dispositive part of the Tribunal’s reasoning. The reference to EB (Kosovo) is in the earlier, scene-setting, part of its reasoning, and there is no sign that when the Tribunal came at paras. 62-65 to strike the necessary balance it started with any presumption that even in the deportation context it would rarely be justified to split up a family. Likewise it is clear that in those paragraphs the Tribunal did not treat the considerations that the Respondent’s deportation would be contrary to the best interests of Amy and Jimmy and that they should not be blamed for their parents’ conduct (as per the observation from Zoumbas) as a trump card or paramount consideration. Rather, it put those considerations into the balance and found that, in the particular circumstances of the present case, what was in the children’s best interests outweighed the public interest in deportation: see in particular the way it is put in para. 65.

The question for us is not – given Mr Sheldon’s disavowal of any perversity argument – whether that conclusion was wrong but whether it was reached by an illegitimate reasoning process. I do not believe that it was. For that reason we do not need to consider whether the decision may or may not have been at the generous end of the spectrum. But I am far from sure that it was. I can see why the Tribunal believed that the circumstances of the Respondent’s offending diminished, at least to some extent, the public interest in his deportation. More significantly, the family structure here was unusual. If Amy and Jimmy had both been the children of the Respondent and Huyen there would have been a strong case that the whole family could, if that was the choice they made, have returned to Vietnam; and indeed the Tribunal said as much in considering the application of paragraph 399 (see para. 23 (2) above). But that would have meant Amy being parted from her father, Tam, with whom she had a close and important familial relationship even though she did not live with him. However I need not consider this aspect further.

I would dismiss this appeal.

I should say by way of postscript that this appeal was originally anonymised on a precautionary basis in accordance with the Court of Appeal’s blanket practice in immigration and asylum cases. Anonymisation is, however, only continued after the grant of permission if good reason is shown. The issue was not in this case addressed at the permission stage and we accordingly asked for submissions. Having read the very helpful note on the applicable principles provided by Mr Sheldon and also the submissions of Mr Harris, with the Respondent’s accompanying witness statement, I would not continue the anonymisation. The only possible reason for doing so would be if the publication of material contained in this judgment was liable to cause substantial harm to the two children, and I am not persuaded that that is the case.

I agree.

I also agree.