The Secretary of State for the Home Department v DB (Jamaica)

This case is an appeal by the SSHD against the Upper Tribunal, concerning the approach of the First-tier Tribunal [“FtT”], which allowed the Respondent’s appeal from the decision by the SSHD to deport him as a “foreign criminal”. It is now acknowledged that the original decision contained an error of law. However, even setting that error aside, we have concluded that the FtT did give proper weight to the public interest in deportation in such cases, and directed themselves properly in reaching their decision, understanding that compelling reasons were required before the Respondent’s claim under ECHR Article 8 could succeed. It follows that the Upper Tribunal was correct in dismissing the appeal. The appeal therefore fails, as we informed the parties at the conclusion of the hearing. This judgment sets out my reasons for that decision.

The Respondent is Jamaican. He was born on 15 November 1969. He came initially to the UK in March 2000. After one return to Jamaica, he came back to Britain and on 7 June 2001 was granted indefinite leave to remain. He and his first wife divorced in January 2003. By then he and his wife had separated and he had formed a partnership with Ms M. It is accepted by the Secretary of State that the relationship is genuine and enduring, despite a period of difficulty around 2009/2010. The couple have a daughter born in January 2008. The Respondent has an older daughter, born of the first marriage in 1994, who has lived with the Respondent and his partner. The older daughter is a Jamaican citizen, an adult and has indefinite leave to remain in the UK. The younger daughter is a British citizen, and has never lived elsewhere. The Respondent’s partner is British and has never been to Jamaica. She has responsibility for her mother and very elderly grandmother, both living near the family.

Save when in custody, the Respondent has been in work and has supported his family. He has regularly spent some nights from home for work, but it is accepted that he has lived with his partner and children.

The Respondent has cautions and convictions. In May 2006 he was cautioned for criminal damage and in April 2007, cautioned for battery. No details are given to us. In September 2009 he was convicted of two offences of battery, in respect of which he was sentenced to a Community Order with a programme requirement. These were offences of domestic violence and the Respondent’s partner was the victim. In evidence to the FtT, she emphasised that she had not wished to prosecute, although the Crown (perfectly properly) chose to proceed. The Respondent completed the necessary course, and the parties were reconciled.

In 2012 the Respondent pleaded guilty to an offence of assault causing actual bodily harm and possession of an offensive weapon. It was these convictions which led to the decision challenged. The Respondent received six months’ imprisonment on each offence to be served consecutively, making a total of 12 months’ imprisonment. As a consequence of the erroneous decision by the Appellant, which I will shortly outline, the judgment of the FtT sets out rather less detail of the offending than might otherwise have been helpful. However, the essential points were set down in the judgment as follows:

As I have said, these convictions stimulated the decision to deport. The decision letter is dated 19 December 2013. The letter considers an asylum claim made by the Respondent, on the basis that his association with an opposition politician in Jamaica would put him at risk, and that he required humanitarian protection. This claim was rejected by the Appellant and dismissed by the FtT. I will say no more about it.

The letter went on to consider the offending, and the Article 8 claim. The critical passage in the letter addresses paragraph 398 of the Immigration Rules. Given the date on which the letter was written, the Rules were of course in the “old law” form (as the parties have termed it), that is to say Sections 32 and 33 of the UK Borders Act 2007, together with paragraphs 398 to 399B as in force from 9 July 2012 to 27 July 2014. The relevant passage of the letter reads:

The critical point here is that the Appellant treated the Respondent as satisfying Rule 398(b): as having “been convicted of an offence for which” he had been sentenced to imprisonment of 12 months. He had not been so convicted. When this matter came to light – or at least into clear light – in the Respondent’s Notice lodged in this appeal, the Appellant introduced a witness statement relevant to the point from Dr Peter Illing, a senior caseworker in the Appellant’s Higher Litigation Team. Dr Illing, on behalf of the Appellant:

However, Dr Illing went on to say:

The FtT hearing took place on 25 March 2014. There may have been some discussion of the basis for the deportation decision, but the matter was clearly not explored. The case proceeded on the basis that the Secretary of State had decided the Respondent fell within paragraph 398(b). Since the self-direction and reasoning of the FtT is at the heart of the argument, I will complete the procedural history before addressing that issue.

The FtT having allowed the Respondent’s appeal, the Secretary of State appealed to the Upper Tribunal. The hearing was on 21 August 2014. The Respondent’s representative did not appear, although the Respondent was present. After waiting to see if the legal representative would turn up, Upper Tribunal Judge Macleman heard the Appellant’s arguments and rejected them, concluding that:

The Secretary of State obtained permission to appeal on paper from Rafferty LJ on 7 March 2015. Unsurprisingly, the permission was granted on the basis that authority would be helpful on the approach to a person sentenced to “less than four years imprisonment”; in other words, an individual fulfilling paragraph 398(b). Subsequently, this case was joined with other cases to form part of the group of cases subsequently reported as NA (Pakistan) v SSHD[2016] EWCA Civ 662[2017] 1 WLR 544. As matters progressed, it emerged that the Respondent was unrepresented, and the case was removed from the group. Thereafter, following a hiatus, Mr Symes came to represent him. Mr Symes spotted the problem with the basis of the decision, successfully sought an extension of time for the Respondent’s Notice from Master Meacher and raised the point, in addition to meeting the submissions in the appeal. I commend the care and clarity of his approach.

It was on that basis the matter came before us, after the hearing in the NA (Pakistan) group, and after a range of other cases, culminating in the decision of the Supreme Court in Ali v Home Secretary[2016] UKSC 60[2016] 1 WLR 4799.

Mr Tam QC for the Appellant began by addressing the error in the decision. His submission was that if this appeal succeeded, the case should be remitted to the Upper Tribunal, so that the issue of the basis of the decision could be explored in evidence. This, he said, was the more desirable course. He implied that a remittal so that a fresh decision could be taken as to whether the Respondent properly fell within paragraph 398(c) might lead to wasted time, since it was, in effect, inevitable that the Secretary of State would decide that he did. I found this last proposition surprising, on the facts of this case. At least on the information available, the Respondent could hardly be said to be a persistent offender, and given the sentences he received, it is not to be taken for granted that he caused serious harm, particularly where the sentencing judge accepted that there was an “element of self defence” and a low risk of re-offending. However, the proposal carried practical sense since, if the appeal failed, the matter would be at an end. If the appeal succeeded, the Upper Tribunal could address the matter. On that footing, the appeal proceeded before us, based on an admittedly erroneous original decision to deport.

Mr Tam’s proposition can be simply stated. He granted some sympathy to the FtT in this case, because of the considerable number of cases clarifying the meaning of paragraphs 398, 399 and 399A, many of which post-dated the FtT decision in this case. That said, the submission is that the Tribunal wrongly engaged in a “free-standing” proportionality exercise when considering the Article 8 claim here, meaning that they did not direct themselves as to the need to find “compelling” or “very compelling” reasons to outweigh the very considerable weight of the public interest in deportation where the Secretary of State has concluded in favour of deportation. Through whatever prism one looks at Mr Tam’s argument, the submission remains that in substance.

As will already be clear, I disagree. This Tribunal did not have the advantage of after-coming authority, Ali v Home Secretary in particular. They were therefore unable to read the crucial but economical passages in the judgments of Lord Reed (paragraphs 36-38) and Lord Thomas CJ (paragraphs 82-84), which now avowedly lay down the necessary principles and beyond which, in the words of Lord Thomas, “it should generally not be necessary to refer …”. However, the Tribunal did make reference to the key authorities and principles which were available to them, and in my view, must be taken to have drawn the correct conclusions.

On that last point it is helpful to note that, echoing paragraph 11 of the judgment of the Upper Tribunal set out above, Mr Tam made it explicit that he was not submitting that the decision was perverse or irrational. Mr Tam conceded that properly directing themselves it was open to the Tribunal to reach the decision they did. The submission is directed to the self-direction.

Early in their reasons, the Tribunal noted how they began their approach:

It will be noted that SS (Nigeria) contains the trenchant stricture by Laws LJ that to avoid deportation, a foreign criminal must advance “a very strong case indeed”. As the passage quoted above makes clear, the Tribunal were fully aware, from their citation of MF (Nigeria), that such a conclusion could only arise in “exceptional circumstances”. That was the context in which they approached the necessary proportionality exercise.

They must also be taken to have been alive to the other relevant remarks in MF (Nigeria). In paragraph 27 of MF (Nigeria) the Court explicitly recognised that the Rules in question “were an index of the enhanced importance the Secretary of State attaches to the public interest in the deportation of foreign criminals”. In paragraphs 41/45 the Court accepted the need for “exceptional circumstances” not as a requirement for an “exceptionality test” but as a measure of the difficulty of fulfilment of the test. This was the thrust of the Secretary of State’s submissions: see paragraph 40 of MF (Nigeria).

Having considered the facts the Tribunal returned to the law in paragraph 47 of their judgment. They cited N (Kenya) v Home Secretary[2004] EWCA Civ 1094 [2004] 1NCR 612, emphasising not merely the need to deter but also “the need to express society’s revulsion” at serious crime. Although this Respondent’s criminality was less serious than that in N (Kenya) the Tribunal marked that there had been, in some way, the use of a knife, an important factor. Having then proceeded to analyse the factors in favour of the Respondent (then of course “the Appellant”), they concluded as follows:

In my view, the Upper Tribunal was correct in its review of the FtT. The FtT directed themselves properly. This was not a “free-standing” proportionality exercise, but one conducted within the confines of careful self-direction, and with a proper recognition of the great weight placed in the public interest on the deportation of foreign criminals. When pressed in the course of argument as to whether anything would satisfy the Appellant of a correct approach, short of recitation of the phrase “very compelling reasons”, it appeared to me Mr Tam was in some difficulties in explaining his position. His answer was that there had to be some explicit recognition of the weight of public interest. It seems to me that comes close to a demand for a form of words in the judgment, a demand which would not be satisfied by a rational judgment making reference to the correct principles and authorities. Such arguments are more often advanced by the Home Secretary’s opponents in such cases, than by the Home Secretary. A judgment, conceded to produce a reasonable outcome, based on proper principle and reciting appropriate authority, cannot properly be struck down as failing to recite the mantra of the moment.

For those reasons I would dismiss this appeal.

I agree.

I also agree.