ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Dawson and Upper Tribunal Judge O'Connor
DA/02215/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE JACKSON
LORD JUSTICE BRIGGS
and
LORD JUSTICE IRWIN
Between :
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT | Appellant |
- and - | |
ANDREW LUKE QUAREY | Respondent |
Mr M Gullick (instructed by Government Legal Department) for the Appellant
AQ appeared in person
Hearing date: 26 January 2017
Judgment
Lord Justice Irwin :
Introduction
This is an appeal from the decision of the Upper Tribunal, Immigration and Asylum Chamber, made on 1 October 2014. The Upper Tribunal “reluctantly” dismissed the Secretary of State’s appeal from the decision of the First Tier Tribunal made on 29 October 2013. The appeal proceeds by way of permission of McFarlane LJ, given on 21 January 2016. The Respondent is a “foreign criminal” within the meaning of United Kingdom Borders Act 2007. The Grounds of Appeal by the Secretary of State are firstly that when assessing whether deportation was proportionate under Article 8 of the European Convention, the FTT failed to have regard to the Parliamentary source and the nature of the State’s policy in favour of deportation, and secondly that the FTT failed to “engage meaningfully” with the threefold criteria, or facets of public interest, in deportation set out in authority, namely the risk of re-offending, the need for deterrence and public revulsion in relation to serious criminal activity. For those reasons, it is said the Upper Tribunal should have allowed the appeal.
These proceedings have taken too long. The FTT hearing was on 24 March 2014 and the Tribunal’s decision was promulgated on 9 April. The Upper Tier Tribunal sat on 22 September and promulgated their determination on 1 October 2014. Thus far, the matter proceeded with reasonable speed. However, there was some delay before the Secretary of State sought to appeal the decision. A re-sealed and amended Appellant’s Notice and Grounds was filed and served in February 2015. Permission was refused by Sullivan LJ on 10 April 2015. Following a fire affecting the Appellant’s office, it was 10 June 2015 before a renewal application was filed. Permission to appeal and an extension of time was granted by MacFarlane LJ on 21 January 2016. A hearing date was set in late July but the Secretary of State applied to vacate the date and adjourn the hearing, an application then supported by the Respondent. It is by that route that the appeal comes to be heard two years and ten months after the FTT decision, and yet based on evidence from that time.
The Facts
The Respondent was born in Jamaica on 14 July 1970. He came to the United Kingdom on a six month visit visa on 21 November 2001, and therefore at the age of 31. He did not leave the UK when his visa expired.
In 2004, the Respondent met his former partner Natasha Pennant, and their child Nariah was born on 7 May 2005. The Respondent and Ms Pennant separated during 2005.
At the end of that year, the Respondent formed a relationship with Simone Ramsay and they began living together in March 2006. Ms Ramsay had another child with a different father, named Ashley Edwards. Ashley was born in 2001. In addition, Ms Ramsay has the care of her nephew, Javanie Morris, the son of her deceased sister. Javanie was born in 2004. On 27 June 2008, Ms Ramsay gave birth to the Respondent’s daughter, Shaniqua. It was not in issue before the FTT that the Respondent treated all three children as his own and was “an active parent to them”.
The FTT had letters from the deputy head of the children’s primary school and from a representative from the Haringey Council Children and Young People’s Service, attesting the Respondent’s close relationship with the children and the negative impact of his removal to prison.
Ms Ramsay is herself of Jamaican nationality. She came to the UK as a visitor in February 2000 and remained here after the expiry of her six months visitor’s visa. She attempted, but failed, to get an extension of leave as a student. In 2007, Ms Ramsay applied for leave to remain on the basis of seven years’ residence of her daughter Ashley. Ms Ramsay, Ashley and Javanie were all given discretionary leave to remain. Ashley became a British citizen in 2012.
On 17 July 2008, the Respondent applied for leave to remain in the United Kingdom. The Secretary of State refused his application in December 2009. The Respondent appealed and his appeal was dismissed by Immigration Judge Drabu in April 2010. At that hearing the judge found many aspects of the Respondent’s evidence to be inconsistent and conflicting. The Respondent was then claiming to be the sole carer of his daughter, Nariah. The Immigration Judge found that evidence to be “hugely exaggerated”. It was accepted that the Respondent had established a family life, but it was held not to be disproportionate to remove him. That decision was upheld by Upper Tribunal Judge Sommerville on 23 November 2010.
As must be clear, the Respondent did not leave the United Kingdom.
The FTT recorded some of the details of the Respondent’s offending. He was convicted of possessing cocaine and heroin on 2 November 2011. According to the remarks of the sentencing judge on the later occasion in 2013, he had in his possession “no less than 65 wraps of Class A drugs” but was nevertheless not prosecuted for possession with intent to supply. He received modest fines.
The Respondent was arrested on 26 October 2012 in Camden High Street. The sentencing remarks in relation to this offending confirm that he had 36 wraps of heroin and 27 wraps of crack cocaine. In interview, he acknowledged that he had been dealing in drugs “for about a year”. He was sentenced on the basis that he was a street dealer in drugs. On 12 February 2013, he was sentenced to 36 months’ imprisonment on each count concurrent. The Respondent was serving his sentence at the time of the hearing before the FTT.
The Appellant’s reasons for the decision to deport were set down in a decision letter of 29 October 2013. He was liable to automatic deportation under the provisions of Section 32(5) of the UK Borders Act 2007 and did not fall within any of the exceptions under Section 33. The Secretary of State did not accept that the Respondent had any family life with his biological daughter, Nariah. It was accepted that he was “in a genuine and subsisting parental relationship” with his daughter Shaniqua, and was living with her in a family unit prior to his conviction. It was, however, regarded as reasonable for the Respondent’s daughter to accompany him to Jamaica if her (Jamaican) mother chose to accompany him back there. The Secretary of State also accepted that the Respondent was in a genuine and subsisting parental relationship with Javanie and Ashley. It was considered that it would be reasonable for Javanie to accompany the Respondent to Jamaica if Ms Ramsay chose to return there with him. It was noted that Javanie had special learning and behavioural needs but “there are educational facilities to deal with this in Jamaica”. Ashley being a British citizen, the Secretary of State accepted that it would be unreasonable to expect her to accompany the Respondent to Jamaica. However, her father “or another relative” could care for her in the UK. After considering the Respondent’s relationship with Ms Ramsay, the Secretary of State concluded that there would be no undue hardship if the Respondent were to be deported since she could accompany him there or, in the alternative, remain in contact and visit regularly. For those reasons, the Secretary of State concluded that the public interest in the Respondent’s deportation outweighed the Respondent’s rights to family life under Article 8.
The Decision of the FTT
Given the attack mounted by the Appellant on the decision, it is necessary to look at the route by which the FTT reached their conclusions. Having recited the facts and the submissions of the parties, the FTT began with the provisions of the UK Borders Act 2007. They noted that there was a requirement on the Secretary of State to make a deportation order under Section 32(5), thus drawing attention to the statutory basis of the obligation, enshrining the authority of Parliament over this public policy. The Tribunal noted the provisions relating to deportation set out in Part 13 of the Immigration Rules, in the form then current. They did so in the following terms:
“26. We must say at the outset that the law relating to deportation has become a very complex field of law most particularly in cases (such as this one) where there are difficult balancing factors to assess. We shall approach our decision firstly by setting out the relevant law and then we shall seek to apply it to the particular facts (as found by us).
27. There are now detailed provisions relating to deportation set out at Part 13 of the Immigration Rules. Paragraph 398 refers to three types of case where a person claims that his deportation would violate his Article 8 rights. In the case of this Appellant, the Respondent relies on 398(b) namely that the “deportation is conducive to the public good because the Appellant has been convicted of an offence for which he has been sentenced to a period of imprisonment of at least 12 months”. The Immigration Rules provides that in such a case, then, unless paragraph 399 or 399A applies, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. For the reasons set out in the refusal letter, the Secretary of State considers that neither 399 nor 399A applies to this Appellant. We agree with the Secretary of State. His relationship with the children does not qualify under 399 as there is another family member (namely their mother) who is able to care for them in the UK. His relationship with his partner does not qualify as she does not have settlement status and has not lived in the UK with valid leave for at least 15 years. As for 399A, the Appellant has not resided in the UK for long enough to qualify under that paragraph. We therefore agree with the Respondent that in order to succeed under the Rules, he must be able to show “exceptional circumstances”.
…
33. We refer also to N (Kenya) v SSHD [2004] EWCA Civ 1094 in which Lord Justice Judge said that there had to be an element of deterrence to non-British citizens who are in the United Kingdom and those minding to come to the United Kingdom so as to ensure they clearly understood that, whatever the circumstances, one of the consequences of serious crime may well be deportation. (This point was emphasized again by the Court of Appeal in the recent case of AJ (Bangladesh) [2013] EWCA Civ 493). In another recent case, Gurung [2012] EWCA Civ 62, the Court of Appeal stated: ‘Nor do we accept that the absence of a risk of reoffending, though plainly important, is the “ultimate aim” of the deportation regime’.”
The Tribunal went on to consider the decision in MF (Nigeria) [2013] EWCA Civ 1192, [2014] 1 WLR 544. In particular, they recited the following passages from that case:
“40. …Ms Giovannetti submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A. It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.
...
43. The word “exceptional” is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the “exceptional circumstances”.
44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not “mandated or directed” to take all the relevant article 8 criteria into account (para 38).
45. Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply.”
The FTT went on to direct themselves as to the importance of the rights of the child, citing Section 55 of the Borders, Citizenship and Immigration Act 2009, considering ZH (Tanzania) [2011] 2 AC 166 [2011] UKSC 4, and EB (Kosovo) v SSHD [2008] UKHL 41:
“37. We turn finally to the key issue of proportionality and the related issue of “exceptional circumstances” under the Immigration Rules. We start our assessment with consideration of the Appellant’s offending behaviour and record. There can be no doubt that the offence for which he received a composite three-year sentence as a “street trader” of heroin and crack cocaine was an extremely serious one and it is with good reason that the Secretary of State regards such drugs offences as being “particularly serious” as stated in the refusal letter. We note also that the Appellant had a previous conviction and a caution for drugs offences. In his favour, we note the contents of the OASys report which assessed him as at low risk of re-offending; that he accepted responsibility for his offending behaviour; and was motivated and capable of addressing the issue in the future. However, the Appellant’s record in the UK is also blemished by his immigration history, given that he had only six months leave when he arrived in the UK; that he knowingly overstayed and made no attempt to regularise his position for over six years until after he had been arrested for immigration offences.
38. Little weight can be given to any factors relating to his private life in the UK. Clearly, the key and overriding factors in his favour concern his family life.”
The Tribunal then considered the letters to which I have referred above from the school and social services, and they concluded as follows:
“39. These two letters add great weight to the Appellant’s case in terms of the best interests of the three children. (We attach little weight to the matter of his other daughter Nariah, as we have no corroborative evidence to indicate that there is an active and subsisting relationship between her and her father). We are led to the conclusion that the Appellant’s deportation would seriously jeopardise the welfare of the three children and in particular Javanie who has special needs. Despite the seriousness of the Appellant’s criminal behaviour and his adverse immigration record, we consider that there are “exceptional circumstances” within the meaning of the Immigration Rules and that the impact on the Appellant’s family life in terms of the adverse effect on the three children outweighs the legitimate aims of the Secretary of State in this case and thus violates his Article 8 rights.”
The Decision of the Upper Tier Tribunal
The UTT reviewed the decision below, repeating the key facts. In paragraph 21 of their decision they noted that the Secretary of State attached great weight to the public interest in the deportation of foreign criminals. They noted the Secretary of State’s submission that the FTT had failed to consider the decision in SS (Nigeria) [2013] EWCA Civ 550 but took the view that since the FTT had considered the Court of Appeal’s decision in MF (Nigeria), that was not a significant error. The UTT noted that the FTT had directed itself to the need for the Respondent to establish “exceptional circumstances”. On that basis, the UTT concluded that:
“24. Looking at the determination in the round we do not accept that the Panel erred in failing to take into account the fact that very significant weight that must be attached to deporting foreign criminals who have been sentenced to a period of imprisonment in excess of twelve months and do not otherwise meet the requirements of the Immigration Rules.
25. For these reasons we do not accept that it has been established that the Panel failed to take into account relevant matters when coming into its conclusions.”
The UTT went on to consider submissions made to them, but not repeated to us, that the FTT had failed to give sufficient and adequate reasons for its conclusions and that the decision was “perverse”. I do not address those points since they are not renewed.
The Appellant’s Amended Grounds and Submissions
Following amendment, the Secretary of State advances two grounds of appeal. I have summarised them above, but it may be helpful to set out their terms:
“Ground 1: Whether the First-tier Tribunal erred in law in failing to have any regard to the statutory source of the policy that foreign criminals such as the Respondent should be deported and/or the great weight to be attached to that policy. It is submitted that Tribunals must, applying this Court’s decision in SS (Nigeria) v SSHD [2013] EWCA Civ 550, [2014] 1 WLR 998, when assessing whether deportation is proportionate under Article 8 ECHR, have regard to the nature and source of the State’s policy that is being pursued.
Ground 2: Whether the FTT’s decision failed to consider the public interest element of the proportionality balancing exercise properly, in accordance with criteria set down on many occasions by this Court. The FTT’s analysis of whether there were “exceptional circumstances” justifying not deporting AQ (at [FTT/37-39]) failed to take into account the public interest in deterring other foreign nationals from committing serious crimes and also the need to express public revulsion at this sort of offending (dealing in Class A drugs) and building public confidence. These were key factors in the assessment of the public interest in deporting AQ.”
Since the decision of the UTT in this case, the Supreme Court has considered the approach to deportation cases of this kind in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799. As is now well known, the Supreme Court reviewed earlier authority, including both MF (Nigeria) and SS (Nigeria). The Supreme Court indicated that the correct approach is firstly to determine whether deportation would be contrary to ECHR Article 8, because the case falls within paragraph 398 (B) or (C) of the Immigration Rules and then one or more of the conditions set out in paragraph 399 or 399A. As will be clear from the extract of the decision of the FTT set out above, that is precisely the step they took, concluding that the Respondent did not qualify. The second stage is to consider the proportionality of deportation, with the public interest held properly in mind. It is here the Appellant suggests they fell into error.
Mr Gullick for the Appellant, in the course of submissions, made reference to a considerable number of authorities. I will consider below the extent to which this is a useful exercise.
In N (Kenya) v SSHD [2004] ECWA Civ 1094, Judge LJ, as he then was, emphasised the wide-ranging nature of the “public good” or “public interest” in this context, identifying “an element of deterrence, for those here or seeking to come here, ensuring an understanding that one of the consequences of serious crime may well be deportation” (see paragraph 83).
Mr Gullick took us to the judgment of Wilson LJ, as he then was, in OH (Serbia) v SSHD [2008] EWCA Civ 694, where following a citation from Judge LJ in N (Kenya), Wilson LJ said:
“15. From the above passages in N (Kenya) I collect the following propositions:
(a) The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.
(b) Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.
(c) A further important facet is the role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
(d) Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal’s duty in this regard as being higher than “to weigh” this feature.
16. In my heart I would wish to propose that this appeal be allowed. The efforts of the appellant to rehabilitate himself and to make himself a useful member of our society are, in the light of his childhood experiences, almost heroic. But my work in the court is supposed to be ruled not by my heart but by my head. I am quite unable, notwithstanding numerous attempts, to wring out of the determination of IJ Elvidge and Mrs Jordan a lawful despatch of the appeal. In their concluding paragraphs there is, of course, a reference to the seriousness of the offence, and a finding, accepted to be amply founded, that there was a low risk of the appellant’s reoffending. But such was only one facet of the public interest engaged by this street stabbing on the part of a teenager armed with a knife. There was there no reference in terms by IJ Elvidge and Mrs Jordan to the public interest even though such was the matter against which the compassionate circumstances fell to be balanced. There was no reference to the significance of a deportation order as a deterrent. There was no reference to its role as an expression of public revulsion or in the building of public confidence. I am unable to subscribe to the argument of Mr Williams today that, from the introductory paragraphs of the determination to which I have referred, we can infer that IJ Elvidge, experienced as he was, and Mrs Jordan took account of these matters; indeed not even there are they squarely addressed.”
We were also taken to the judgment of Elias LJ in AM v SSHD [2012] EWCA Civ 1634, where in a similar context he said:
“41. The central question in this appeal is whether the FTT erred in law in its approach to proportionality. In particular, did the FTT have in mind not only the risk that the applicant might commit future offences but also the need to deter foreign nationals from committing serious offences by making it plain that one of the consequences may well be deportation, as well as the legitimate need to reflect society’s public revulsion of such crimes and to ensure that the public will have confidence that offenders will be properly punished?
42. The decisions of this court in N (Kenya), OH and RU (Bangladesh) all emphasise the importance of a tribunal giving full weight to these different aspects of the public interest in the proportionality assessment. They emphasise that it is not a sufficient answer to the public interest concerns that the risk of future offending by the applicant himself is very low. Indeed, where a serious offence has been committed, then as Lord Justice Judge (as he was) pointed out in N (Kenya) (para 65), that will not even be the most important aspect of the public interest.
43. Nowhere does the Tribunal in terms state that it has had regard to these factors. But I do not believe that the observations of Lord Justice Wilson in OH or of Lord Justice Aikens in RU (Bangladesh) were intending that they should be repeated, mantra fashion, when a tribunal is explaining its proportionality assessment in order for a tribunal’s decision to pass muster. However, if a tribunal fails expressly to refer to these factors, then in my view there will have to be very cogent evidence from which it can properly be inferred that the tribunal must have had these considerations in mind. It is not enough to say that a specialist tribunal must have been aware of these authorities and should be assumed to have given weight to these factors.
44. The question for us is whether it is legitimate to infer that the FTT gave full weight to those considerations.”
Mr Gullick referred us to the decision of this Court in SE (Zimbabwe) v SSHD [2014] EWCA Civ 256, where Jackson LJ, having also referred to N (Kenya), said that:
“May LJ (with whom Judge LJ agreed) held that the risk of re-offending was only one factor to take into account. Where someone has been convicted of a very serious crime, the need to deter and the need to express society’s revulsion at such criminality are even more important factors to be taken into account.”
In that case the FTT had not taken into account the need to deter, addressing only the risk of reoffending, and thus the decision was quashed.
Mr Gullick relied on dicta of Gross LJ to a similar effect in SSHD v LW (Jamaica) [2016] EWCA Civ 369. In that case, this Court found that the FTT had made an error of law in failing to consider the Article 8 question –
“…through the lens of the new rules rather than in the free-standing manner adopted by the FTT. All the more so as a number of authorities there considered by the FTT related to immigration control rather than deportation, so compounding the error.” (paragraph 30)
In that context, Gross LJ went on to observe:
“32. I therefore return to [53] – [54], the paragraphs which are key to the FTT reasoning in the first part of its decision. Reading these paragraphs as benevolently as I can, I am unable to avoid the conclusion that the FTT here fell into error. While it is fair to say that mention is made of the public interest in “removing foreign citizens convicted of serious offences”, I cannot detect any acknowledgment of the great weight to be attached to this public interest in the deportation of “foreign criminals” (as defined). It is because of the importance attached to that interest that there needs to be something compelling to outweigh it. The reference to the “Maslov” jurisprudence (FTT decision at [31] and elsewhere) strongly indicates that the public interest here featured as simply one amongst a number of considerations in the FTT’s decision – as indeed it did in the FTT’s reasoning at [56] and following. No special weight was given to the public interest in deportation at all. As consequence, the FTT’s error, if I may venture to encapsulate it in a sentence, lay in treating “exceptional circumstances” as meaning “unusual circumstances” rather than “compelling reasons”.”
It is worthy of note that Gross LJ went on to conclude his judgment in the following terms:
“38. For my part, by way of postscript, I am far from saying that, on the facts of this case it might not be open to the FTT (or UT) to conclude that there are compelling reasons for not deporting LW - based especially on the fact of 40 years’ (lawful) residence so as to make deportation unconscionable despite his sentence for dealing in class A drugs. But – an important but – it matters to public confidence that any such decision is reached appropriately, after due regard is had to the great weight to be attached to the public interest in the deportation of foreign criminals and with “exceptional circumstances” properly understood as meaning “compelling reasons.”
The Appellant relies on the restatement and reinforcement of the correct approach to be found in the decision of the Supreme Court in Hesham Ali. The approach was set down by Lord Reed, in terms with which the majority agreed, as follows:
“38. The implication of the new rules is that rules 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 rules 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: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). 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. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang [2007] 2 AC 167, para 20), but they can be said to involve “exceptional circumstances” in the sense that they involve a departure from the general rule.”
Finally, we were taken by Mr Gullick to the very recent decision of this Court in EJA v SSHD [2017] EWCA Civ 10, which followed shortly after the decision in Ali was handed down. In that case, Burnett LJ cited paragraph 38 from the judgment of Lord Reed, and went on to observe:
“It is abundantly clear that Hashem Ali (sic) has not lowered the significant hurdle which must be overcome by a foreign criminal to succeed in demonstrating that it would be disproportionate to deport him from the United Kingdom.”
As to the way the FTT in that case had approached their task, Burnett LJ concluded:
“There is nothing in the determination which suggests that the F-tT appreciated that to resist deportation it was necessary for EA to demonstrate “very compelling reasons”, having regard to the totality of the evidence, why he should not be deported. It is possible when reading many decisions to be confident that the right test has been applied from the way in which the issues are discussed and conclusions reached, even if it is not expressly articulated, but I do not consider that this is one of those decisions.”
In different language, each of those authorities stresses the need for clear reasoning when considering the public interest in deportation, and a balancing exercise demonstrating that the decision-maker fully weighs the consequences of a deportation against the very strong public interest in the deportation of foreign criminals. In the course of his short judgment in Hesham Ali, Lord Thomas CJ said:
“82. I agree with the judgment of Lord Reed and in particular the matters he sets out at paras 37-38, 46 and 50. I add three paragraphs of my own simply to emphasise the importance of the structure of judgments of the First-tier Tribunal in decisions where article 8 is engaged. Judges should, after making their factual determinations, set out in clear and succinct terms their reasoning for the conclusion arrived at through balancing the necessary considerations in the light of the matters set out by Lord Reed at paras 37-38, 46 and 50. It should generally not be necessary to refer to any further authority in cases involving the deportation of foreign offenders.
83. One way of structuring such a judgment would be to follow what has become known as the “balance sheet” approach. After the judge has found the facts, the judge would set out each of the “pros” and “cons” in what has been described as a “balance sheet” and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders.
84. The use of a “balance sheet” approach has its origins in Family Division cases (see paras 36 and 74 of the decision of the Court of Appeal In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563). It was applied by the Divisional Court in Polish Judicial Authority v Celinski [2016] 1 WLR 551 to extradition cases where a similar balancing exercise has to be undertaken when article 8 is engaged - see paras 15-17. Experience in extradition cases has since shown that the use of the balance sheet approach has greatly assisted in the clarity of the decisions at first instance and the work of appellate courts.”
Whilst of course that decision was available neither to the FTT nor to the UTT, it is in substance consistent with previous authority. A structured judgment comprising a “balance sheet” serves as a discipline on decision-making, ensuring that the balancing exercise is properly conducted and is transparent to the reader.
The Appellant submits that a Tribunal must consider whether there exist in a given case, “very compelling reasons amounting to exceptional circumstances” in order to outweigh the public interest in the deportation of a foreign criminal. In my judgment, both of the Grounds formulated by the Appellant really amount to the submission that in applying the “exceptional circumstances” approach, as the FTT say they did, the FTT did not go far enough. They did not say, in so many words, that the statutory origin of the obligation to deport a foreign criminal made the policy more weighty. Nor did they make explicit reference to or analyse explictly:
“…the three-fold criteria of risk of re-offending, the need for deterrence and the public revulsion in relation to serious criminal activity ….”
as the matter was put by Longmore LJ in PK (Congo) v SSHD [2013] EWCA Civ 1500, at paragraph 24, following on from the analysis of Wilson LJ in OH (Serbia), as set out above.
The criticism of the UTT is simply that they failed to perceive the suggested error in the approach of the FTT and to quash that decision.
The Respondent
The Respondent lost his legal representation in the days leading up to the hearing before us. He represented himself, with some assistance in finding the relevant passages in the authorities from Mr Gullick’s pupil, Mr Alexander Whatley. In the event, we did not call on the Respondent.
Analysis
Neither the expression of their judgment by the FTT nor the review by an appellate court must be permitted to become a mere “tick-box” exercise. As Elias LJ observed in AM v SSHD, the decision of a tribunal is not to be flawed because when giving their reasons, the tribunal fails to repeat “mantra fashion” the separate identified ingredients of the public interest in deporting foreign criminals, or for that matter, fail to recite expressly the statutory origin of the policy of deportation, and that the statutory origin means that the policy is that of Parliament, not “merely” that of the Secretary of State. Nor is there an obligation on a Tribunal to recite all of the key passages from authority. In the end, with respect to him, it appeared to me that Mr Gullick would have been satisfied with nothing less than such an anxious parade of learning. That is in the end an unhelpful approach. The matter is one of substance, not appearance.
The approach has now been clearly set out by Lord Thomas in the passage in Hesham Ali cited above and I need not repeat it. I add only this: it will be wise for a tribunal, in a suitable case, to set out in their balancing exercise the degree of weight they ascribe to the various factors which arise, on the evidence, both for and against deportation. The decision must be transparent and clearly understood.
I turn to the substance here. It appears to me that the FTT were alive to the proper considerations. They referred directly to the statutory basis of the obligation on the Secretary of State to deport. They can be taken to understand that the statute, and thus the obligation, carry the authority of Parliament. They cited the critical passages from MF (Nigeria) set out above, which spell out the point that such a one as this Respondent will only succeed in avoiding deportation “exceptionally”, meaning where there exist “very compelling reasons”. The FTT here also had well in mind the terms of the relevant decision by the Appellant. They had a clear view of the facts and the family circumstances. In considering the nature of the public interest in deportation as it affects this case, they made clear that the low risk of future offending was not the only matter of public interest, noting the passage from Judge LJ in N (Kenya) cited above, and emphasising the need for deterrence of others. On that basis they reached their conclusion.
In my judgment, the FTT directed themselves to the proper considerations of law. For those reasons, I would dismiss the appeal.
Lord Justice Briggs:
I agree. In this case the FTT chose to demonstrate that it understood the relevant legal considerations by a careful and extended citation from the key paragraphs of the relevant authorities, rather than by seeking to summarise them in their own words, or by setting then out again when applying those considerations to the facts as found. Reading the judgment of the FTT as a whole, I consider it to be reasonably clear that those were the considerations applied during the carrying out of the balancing exercise called for by the Article 8 appeal in this case. The UT was therefore correct to conclude that the FTT’s decision was not vitiated by any error of law.
Lord Justice Jackson:
I also agree.