BS (Congo) v The Secretary of State for the Home Department

This is a short form judgment which, with the encouragement of Sir Terence Etherton MR, judges of the Court of Appeal may in future use for appellate decisions in appropriate cases. This appeal raises no issue of law, precedent or other matters of general significance and the relevant facts and documentary material are set out in the judgment under appeal and are not in dispute.

The facts are set out in the judgment of the First Tier Tribunal (“FTT”), as is the legal framework.

I would dismiss the appeal.

Mr Waite for the SSHD advanced five criticisms. He complained that the FTT took no or insufficient account of the public interest in immigration control, no or insufficient account of the Respondent’s failure to leave voluntarily, failed to position in the exercise of proportionality the Respondent’s case as falling outside Immigration Rules (“IR”) 398 and 399, failed to address possible relocation of the family to DRC, and applied as a test compelling circumstances, omitting the essential descriptor “very”.

For his first complaint, as to dual aims, he relied on the sole reference in the FTT’s judgement to the importance of precariousness:

“We very much bear in mind the public interest.”

That paragraph begins with an acknowledgement of the Respondent’s choice to have children “when his status was uncertain”. I agree with Mr Waite: uncertain it was not. It was certain and it was precarious.

His complaint is, however, as the UT pointed out, answered when FTT continued:

“We accept that the appellant chose to have children in the UK when his status was not only uncertain but where he could have been deported at any time.”

The UT considered that sentence recognised that he could have been deported at any time following his criminal activity but that his status was uncertain from the start [my emphasis].

I did pause over the syntax of the UT’s conclusion on the relevance of his having completed his sentence. It said:

“Given that the appellant’s sentence was completed before his marriage and the birth of his children in this case we cannot see how the maintenance of effective immigration control and the aim of preventing disorder or crime has any particular relevance in this case.”

I think the UT meant that his Article 8 (“Art 8”) rights came into play only after release. Since nothing post-release compromises his Art 8 rights, the dual aims are not offended and my hesitation falls away.

I am not persuaded that the FTT or the UT fell into error. The determinations show awareness of the Respondent’s poor immigration history and of the dual aims. The FTT correctly directed itself as to the public interest in the right of the UK to control its immigration regime and that the UK Borders Act 2007 established that automatic deportation flows from a sentence in excess of twelve months. In a later part of its judgment it recognised the will of Parliament and the effect of crime on others but after anxious scrutiny found that compelling circumstances just outweighed the public interest.

Like the UT I identify no flaw in the reasoning and would reject this complaint.

The second complaint is the failure of the FTT to take account of the absence of voluntary departure. The syntax of the judgement might suggest the FTT considered him entitled to stay after his failed appeal until removed. If it did, it should not have done. He was here unlawfully and, subject to a DO, obliged to leave.

Voluntary removal was not raised by either party at any stage. The SSHD argues that implicitly it is always in play, the Respondent that the SSHD elected not to raise it and had she done so the Respondent could have answered it. The UT noted that “delay by the [Respondent] is not referred to in the [Appellant’s] refusal letter, nor as Mr Avery frankly accepted, was there evidence regarding a delay by the [Respondent] before the First-tier Tribunal, nor was there any argument or discussion about this”. In those circumstances I agree with the UT that the FTT cannot be said to have given “inadequate recognition” to the absence of voluntary departure.

Next, the FTT is said not to have regarded the criteria in IR 398 and 399 as significant and important in themselves within the proportionality exercise, no weight being attached to the expression of public policy there contained and reference in the judgment to the IR scant.

The answer lies in the FTT’s explicit analysis of the effect of the IR. It had considered the arguments advanced by the SSHD before accurately describing them as highly relevant to its decision and expressing in clear language their import.

There is nothing in this point.

The fourth criticism is of the silence in the judgment as to the opportunity for the family to relocate to DRC. I was shown nothing to suggest it was raised in argument. Miss Jegarajah for the Respondent told us that it was accepted that the family would not be relocating. In those circumstances the opportunity to do so was not an issue which arose.

Finally the SSHD complains that the wrong test was applied by the FTT when it referred to compelling circumstances insufficiently recognised under the IR.

It is true that the FTT in two separate parts of its judgment used ‘compelling’ absent any descriptor. The correct test in the Rules, at that time, was ‘exceptional’, which had been interpreted by the courts to mean ‘very compelling’. It is the absence, twice, of ‘very’ upon which the SSHD relies.

Her difficulty is that the FTT earlier recited the correct test. In the context of MF Nigeria [2012] UKUT 00393 (IAC) it considered the IR, the use of “exceptional” and then said that “very compelling reasons would be needed to outweigh the public interest in deportation”. It simply used shorthand thereafter. The UT adopted the shorthand having read the full analysis. I reject this complaint.

The entire factual context was in play before the FTT which heard of the years of delay post-release during which the Respondent reported faithfully as required but the SSHD did nothing. Delay, which it reminded itself is not per se reason to allow an appeal, nevertheless tempers precariousness. The panel heard the family tested, found the relationships genuine and subsisting, and after a careful analysis and anxious scrutiny found the balance, just, in the Respondent’s failure.

I agree with the UT’s description of this as a finely balanced case but one in which the FTT was entitled to conclude that very compelling circumstances outweighed the public interest in deportation.

I would dismiss the appeal.

I agree.

I also agree.