On 6 February 2014 the respondent, a citizen of Colombia who arrived in the UK in October 1978 when aged 11 and who has resided here for nearly 40 years since that date, was served with a deportation order. His appeal against that order was allowed by the First Tier Tribunal (Judges Gibb and Beach) in July 2015. The Secretary of State’s appeal against the FTT decision was dismissed by the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Frances) on 12 January 2016. The Secretary of State now appeals against the tribunal decisions, permission for a second appeal having been granted by Lord Justice Elias in February 2017.

The tribunal decisions and the issuing of the present appeal occurred at a time prior to the UK Supreme Court’s decision in the case of Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] 1 WLR 4799 which aimed to provide clarity with respect to the law relating to the deportation of foreign criminals.

This appeal, therefore, in common with a number now coming before this court, whilst issued at a time when the law relating to deportation may not have been entirely clear, now falls to be determined in the light of the Supreme Court decision in Hesham Ali together with subsequent related decisions of the Court of Appeal.

As counsel for the Secretary of State, Miss Catherine Rowlands, conceded, the point of law now relied upon by the Secretary of State is in reality a perversity challenge to the FTT determination on the basis that the particular factual elements of the present case were incapable, either individually or taken together, of establishing the “very compelling circumstances” relating to the European Convention on Human Rights, Article 8 sufficient to justify the otherwise automatic deportation of a foreign criminal who has been sentenced to a period of between 12 months and 4 years imprisonment as required by Nationality, Immigration and Asylum Act 2002 (“NIAA”), s.117C and Immigration Rules, r398, 399 and 399A.

In the circumstances, save for asserting an error in the tribunal’s application of the law to the facts of this case, this appeal does not raise any point of law for determination. My Lord and I, having read the papers in the case and heard the oral submissions of Miss Rowlands on behalf of the appellant, and without calling upon Mr Gordon Lee on behalf of the respondent, formed the clear view that the appeal could not succeed. In the circumstances, this is a short judgment, prepared in accordance with the current practice of this court.

Although the FTT considered a substantial body of written and oral evidence at a hearing conducted over the course of 3 days, the relevant factual background can be stated shortly.

The respondent arrived in the UK in October 1978 at the age of 11 years and, thereafter, remained here having been granted, on two occasions, leave to remain. In 1987 he was sentenced to 3 years imprisonment for possession of a controlled drug with intent to supply. Between 1987 and 2010 he received 8 convictions for 11 offences made up of offences against the person, public order offences or offences relating to the police or justice system. On 17 September 2010 he was convicted of an offence of wounding with intent to do grievous bodily harm and was sentenced to a period of 45 months imprisonment. It was this latter period of imprisonment which triggered the Home Secretary’s decision to order his deportation.

In addition to the history of previous convictions, the FTT heard evidence and considered police intelligence reports as to the respondent’s general level of criminality, albeit that that behaviour did not lead to any specific criminal conviction. Having considered that evidence the FTT concluded (at paragraph 111) :

The FTT considered evidence as to the state of the relationship between the respondent and his only child, a daughter, who was then aged 15 years. The respondent did not live with his daughter or her mother, and there was conflicting evidence as to the amount of contact he had with her. On this element the FTT concluded (at paragraph 116):

The evidence showed that the appellant had visited his home country of Colombia from time to time and the FTT concluded, within the context of NIAA 2002, s.117C(4)(c) that the respondent had failed to establish that there were “very significant obstacles” to his reintegration to Colombia were the deportation order to stand.

A further factor before the FTT related to the relationship that the respondent had established with his current partner following his release from prison. The tribunal accepted that this was “a strong relationship”.

The final two factors considered by the tribunal are of central relevance in the context of this appeal because, in addition to the relationship with his partner, they formed the basis of the tribunal’s conclusion on the issue of “very compelling circumstances” justifying a decision not to deport.

The first factor relates to evidence of the respondent’s rehabilitation in the 5 years, as the period then was, following his conviction in 2010 and, secondly, the time that the respondent had spent living in the UK and the degree of integration that he had with family members, and the community more generally, here. The tribunal’s findings on these two points are at paragraphs 120 and 121 as follows:

The Secretary of State must make a deportation order in respect of a “foreign criminal” as defined by the UK Borders Act 2007, s.32. Section 33(2) of the 2007 Act, however, establishes an exception “where removal of the foreign criminal in pursuance of the deportation order would breach a person’s convention rights”.

NIAA 2002, ss.117A to 117D sets out the public interest considerations relevant to the evaluation of claims under ECHR Article 8 in the context of “foreign criminals” who would otherwise fall for automatic deportation.

The provisions of central relevance to the present appeal are within in s.117C as follows:

The relevant Immigration Rules mirror the statutory provisions. Rule 398(b) provides that “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 less than 4 years but at least 12 months.” In such a case. where the person claims that their deportation would be contrary to the UK’s obligations under Article 8, the Secretary of State in assessing that 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.”

In the present case the relevant paragraph is 399A, the terms of which mirror those of s.117C(4).

On the basis of the findings that I have already recorded, having held that the respondent had failed to establish “very significant obstacles” with respect to his reintegration into Colombia, this case did not fall for determination within the terms of s.117(4) or rule 399A. The FTT therefore turned to consider the Article 8 claim outside that rule having expressly and correctly directed itself to the terms of rule 398 to the effect that the public interest in deportation would only be outweighed by other factors “where there are very compelling circumstances over and above those described” in the various exceptions.

The FTT quoted extensively from the current case law as it then was. In particular reference was made to the ECHR decision in Maslov v Austria [2009] INLR 47.

Under the heading “very compelling circumstances”, the FTT considered the general evidence of the respondent’s integration into the community in the UK since his arrival at the age of 11, taking account of the fact that he spent his formative years here. Account was taken of the members of his family who reside in the UK together with the more recent evidence of his relationship with his partner. The FTT then made the evaluation set out at paragraphs 120 and 121 which are quoted in full above.

The FTT then described the final analysis leading to its conclusion at paragraphs 123 to 125:

The appeal as it is now presented on behalf of the Secretary of State accepts that the FTT considered each of the factors that were relevant to the Article 8 evaluation, but challenges the attribution of weight to each factor. In short terms it is submitted that insufficient weight was afforded to the serious nature of the respondent’s final conviction together with the FTT’s findings as to his general criminal behaviour, and, conversely, too much weight was attributed to the quality of the respondent’s family and private life ties in the UK, the degree to which he had become integrated into life in the UK over the course of the previous 3 decades and more and the evidence as to his rehabilitation and reform.

In opening her submissions Miss Rowlands submitted that the FTT had erred in its evaluation of the importance of the respondent’s relationship with his daughter. This point did not represent an auspicious start to the Secretary of State’s submissions. The FTT had expressly concluded that the respondent did not see his daughter on a regular basis, there was little, if any, evidence of any real involvement in her life and insufficient evidence to show that he had a genuine and subsisting parental relationship with her. Thereafter the daughter is not mentioned at any stage in the tribunal’s analysis. Despite accepting those points as to the content and structure of the tribunal’s judgment, Miss Rowlands nevertheless maintained the submission that the tribunal must have, by implication, attached unjustified weight to the father/daughter relationship or failed to take account of the fact that the daughter was, at the time of the hearing, on a 4 month holiday in Colombia. That submission was, in the light of the clear words of the tribunal’s decision, wholly unsustainable.

In the course of submissions Miss Rowlands accepted that the FTT were correct to hold that the approach described by the ECHR in Maslov must be incorporated into an Article 8 evaluation conducted outside the express terms of the rules in a case such as this. Her submission was that individually, or collectively, the facts in the present case were not capable of supporting a finding of very compelling circumstances. In particular, whilst an individual who had arrived in the jurisdiction at a young age and had stayed for a significant length of time might establish very compelling circumstances, in the present case the weight to be attached to those circumstances must, necessarily, be reduced by regard to the serious criminal activity represented by the respondent’s convictions and the tribunal’s more general findings of criminality. Whilst Miss Rowlands is correct in that submission, in order to succeed in this appeal it is not only necessary to demonstrate that another tribunal might have afforded greater or lesser weight to one or other factor, but also that no reasonable tribunal could, on the findings made, have concluded the Article 8 evaluation and the finding of “very compelling circumstances” in favour of the respondent.

Miss Rowlands submitted that even if the circumstances of this case were sufficiently significant to demonstrate that the respondent had had “a series of near misses” in bringing his case within the express provisions in the rules, that state of affairs could never result in an Article 8 evaluation outside the rules concluding that “very compelling circumstances” existed. I disagree. The purpose of an Article 8 evaluation which is conducted after a foreign criminal has failed to bring his case within s.117C or the express provisions in the rules, is to look at the same factors again, together with other relevant factors not specifically covered within the terms of the statute or the rules, within the context of Article 8 albeit with due regard to the public policy in favour of deportation of foreign criminals and expressly taking account of the “very compelling circumstances” threshold.

Recently, this court (McFarlane, Floyd and Sales LJJ) considered a similar challenge in the case of Mwesezi v Secretary of State for the Home Department [2018] EWCA Civ 1104. In that case the Secretary of State had succeeded before the Upper Tribunal in overturning a FTT decision in favour of an appellant in circumstances which involved a foreign criminal who has come to this country at a young age, had committed offences as an adult and in respect of whom there were no very significant obstacles to his integrating back into his country of origin. However, it is important to note that the appellant’s offending in that case was considerably more serious and placed him in the category of serious offender for the purposes of s.117C, as explained in NA (Pakistan). Also, the evidence of rehabilitation was not as strong as in this case. The Upper Tribunal had overturned the FTT decision on the basis that, on the facts of that case, a conclusion that “very compelling circumstances” existed was not one that was reasonably open to the tribunal on the facts as it had found them to be. In short, the Home Secretary’s perversity challenge had succeeded. This court dismissed the appellant’s appeal.

The present case is, in my view, different. As Mr Lee rightly submits, an appellant court must afford due deference and respect to the evaluation of an expert tribunal charged with administrating a complex area of law in challenging circumstances (per Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678 at paragraph 30). As Miss Rowlands accepts, in the present case the FTT identified each and every relevant circumstance, both for and against deportation. There is no error of law in terms of the identification of the relevant provisions and the structure of the tribunal’s decision making. The appeal solely turns on the attribution of weight. The tribunal had heard oral evidence over the course of 3 separate days from a range of witnesses, including a police officer. As the terms of its decisions demonstrate, at all times the tribunal kept in mind the seriousness of the respondent’s criminal behaviour, conducted over a period of years, and had in mind the “great weight” that must attach to the public interest in deporting foreign national criminals. In its final paragraph, the tribunal refers to the phrase “very compelling circumstances”, observes that “very” indicates a very high threshold and observes that the word “compelling” means circumstances which have a powerful, irresistible, and convincing effect. It is hard to contemplate how the tribunal could have demonstrated any greater focus on the public policy factors in favour of deportation.

Nevertheless the tribunal concluded that the respondent’s age at arrival, the length of time that he had lived in this country, the family and private life ties he had with his family, his new partner and more generally and, finally, the evidence of reform and rehabilitation were sufficient to establish very compelling circumstances. With regard to the latter, rehabilitation, factor the tribunal, in terms, held that the likelihood of re-offending did not carry much weight, but was still of some significance; an observation which is wholly at odds with the Secretary of State’s case before this court.

Whilst another specialist tribunal might have reached a contrary conclusion, it is, in my view, not possible to hold that the FTT in the present case arrived at a conclusion which was insupportable on the evidence or otherwise perverse. That being the only point in the appeal, the appeal must fall to be dismissed.

I agree.