MA (Pakistan) v Secretary of State for the Home Department

This is an appeal from the decision of the Upper Tribunal (Asylum and Immigration Chamber), promulgated on 4 September 2017, in which UT Judge Kebede dismissed the appellant’s appeal against a decision of the First Tier Tribunal (Judge Gribble), dated 29 May 2017. The FtT had dismissed the appellant’s challenge to a decision of the respondent contained in a letter dated 9 August 2016, refusing the appellant’s human rights claim and maintaining a decision to deport him.

In order to understand the issues that arise on the appeal, it is necessary to summarise some of the background to the appellant’s immigration history.

He married SB, a British citizen, in October 1996. In February 1998, he came to this country on a spousal visa. He has remained here since then. The couple have six children, the youngest of whom was born in November 2016.

In December 2005, the appellant’s application for naturalisation was refused. This was because he had failed to inform the Home Office that he had become involved in a police enquiry into a fatal assault. In April 2006, he was convicted at Birmingham Crown Court of the manslaughter of Qamar Zaman. For this offence he was sentenced to a term of 4 years imprisonment. The two men had been involved in an altercation in a public park, both had left after being separated and had then returned. The appellant had armed himself with a screw-driver. While holding his victim in a headlock, the appellant struck him in the eye with the screwdriver causing his death. The sentencing judge approached the sentence on the basis that the appellant did not intend either to kill or cause really serious harm, since the jury had acquitted him of murder, and on the basis that he had not intended to stab his victim in the eye. ‘It was a misfortune that when [the appellant] struck out with the screwdriver it went into that particularly sensitive part of the [victim’s] face.’

In October 2007, the respondent served the appellant with a notice of intention to deport him. In February 2008, the appellant’s appeal against the deportation on asylum and human rights grounds was dismissed. His subsequent challenges on legacy and compassionate grounds were also dismissed.

He then appealed against the respondent’s refusal to revoke the deportation order on human rights grounds. In December 2011, the FtT allowed his appeal; and in June 2012, the Upper Tribunal dismissed the respondent’s appeal.

On 27 October 2012 the respondent wrote to the appellant in the following terms:

It will be necessary to consider later in this judgment the legal effect of this letter.

The appellant was given six months’ discretionary leave to remain, which was subsequently extended. However, in March 2015, he was notified that the respondent was considering issuing him with a deportation order and was invited to make representations in response.

Having considered those representations, the respondent wrote on 9 August 2016 refusing the appellant’s application for further leave to remain and his human rights claim, and maintained the decision to deport him.

The appellant appealed, as he was entitled, against the human rights decision under

The hearing took place in Birmingham before Judge Gribble (‘the Judge’). Her decision is clear and comprehensive. She set out the background and the material filed by each side (§§1-16), as well as the reasons underlying the 9 August 2016 decision letter. She set out the law that applied (§§24-33), and summarised the evidence of the appellant, his wife and children, as well as the submissions made on his behalf (§§3450).

Before the FtT, a number of arguments had been raised in support of the appeal of which it is only necessary to mention the six which formed the basis of the grounds of appeal before us. For convenience the relevant statutory provisions and Immigration Rules are set out in an appendix to this judgment.

Ground 1 was founded on a contention that the deportation order was unlawful since it was in respect of a conviction that pre-dated the coming into force of ss.116-117C of

Ground 2 was an argument that the letter of 22 October 2012 raised a legitimate expectation that, unless he committed a further offence, the appellant would be allowed to remain in this country. He had not committed any further offences and it followed that he should be allowed to remain.

Ground 3 relied on paragraph 399C of the Immigration Rules, which provides:

Ground 4 (ground 6 in the FtT and UT) was based on section 117C of the NIAA 2002, which provides:

The argument was that appellant’s circumstances were such that there were very compelling circumstances over and above those described in exceptions 1 and 2.

Ground 5 (ground 7 before the FtT and UT) was that the respondent had failed

Ground 6 (ground 8 in the tribunals) was an argument that the respondent had failed to apply the law as set out in Ali (Hesham) v. Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 and particularly the judgment of Lord Reed at [50].

The Judge made the following material findings.

The appellant had rightly accepted that he was a ‘foreign criminal’ to whom s.117C of the NIAA 2002 applied. Paragraph 399C of the Immigration Rules was not a freestanding provision but had to be read with the other Rules introduced in 2014. It

The only legitimate expectation the appellant had was that he would be granted further periods of leave to remain in the UK in accordance with the law as it stood at any particular time. The respondent’s letter of 27 October 2012 was clear in its terms: the appellant’s deportation remained conducive to the public good and any grant of leave would be reviewed every six months.

The respondent’s August 2016 decision was not a second punishment such as to engage the ne bis in idem principle. It was a decision based on a change in the law, in respect of which the position had been reserved in the 27 October 2012 letter.

The Judge considered the factors set out at s.117B Article 8: public considerations applicable in all cases, and subsection (1) which provides that the maintenance of effective immigration control is in the public interest. She then considered s.117C and the additional considerations which apply in all cases involving foreign criminals and in particular subsections (5) and (6), which provide:

The Judge accepted that the appellant had a genuine and subsisting relationship with his wife and children, and that the effect of deportation would be unduly harsh on them. She then considered whether there were ‘very compelling circumstances over and above exception 2’. She concluded that there were not [80]-[83].

The appeal was therefore dismissed.

The appellant appealed against the FtT decision and the appeal was dismissed in a reasoned decision.

Mr de Mello argued in support of ground 1that the decisions of the FtT (in December 2011) and the UT (in June 2012) in relation to the article 8 rights of the appellant and his family were binding on the respondent, absent a material change of circumstances. He referred in this context to the observations of Lord Neuberger of Abbotsbury PSC in R (Evans) v. Attorney-General [2015] AC 1787 at [52]. The respondent could not avoid the consequences of those decisions by repeatedly granting leave to remain and then exercising the powers under s.3(5)(a) of the Immigration Act 1971 (‘IA 1971’),

In the developed argument on ground 2, Mr de Mello relied on what he said was a legitimate expectation that arose from the terms of the 27 October 2012 letter: namely, that the appellant would have leave to remain unless he committed a further offence or came to the adverse notice of the respondent.

I do not accept these submissions, substantially for the reasons set out by the Judge in the FtT decision.

Two material questions arise in relation to a decision to deport a foreign criminal. The first is whether the deportation of an offender is conducive to the public good? If so, the offender is liable to deportation under s.3(5)(a) of the IA 1971. The second question relates to the circumstances in which it is open to the respondent to make a deportation order? There may be a legal obstacle to the deportation of an offender, for example, because it would infringe Convention rights; and such an obstacle may be permanent or temporary. However, the bar to deportation does not alter the fact that the offender is a person whose presence is not conducive to the public good, see the judgment of Lord Hughes in R (George) v. Secretary of State for the Home Department [2014] UKSC 28, [2014] 1 WLR 1831.

The first question was addressed in the respondent’s letters of 27 October 2012 and remained unchanged: the appellant’s conviction rendered his deportation conducive to the public good. The answer to the second question, depends on whether a change in the law provided a proper foundation for the respondent’s decision in August 2016 to order his deportation.

In Secretary of State for the Home Department v. TB (Jamaica) [2008] EWCA Civ 977 Stanley Burnton LJ made clear that the respondent was not entitled to disregard a determination (in that case by the IAT), but added at [35]:

In YM (Uganda) v. Secretary of State for the Home Department [2014] EWCA Civ 1292 at [38], Aikens LJ said this:

In Secretary of State for the Home Department v. Rexha (s.117C - earlier offences) [2016] UKUT 335 (IAC), the UT (Dove J and DUTJ Grimes) was concerned with an offender who was convicted in 2002 of possession of 188kg of cannabis with intent to supply. He was sentenced to 4 years’ imprisonment; but persuaded an adjudicator that the offence was not sufficiently serious to justify the Secretary of State’s decision to deport him. In 2010, he was convicted of (simple) possession of a class A controlled drug and was given a conditional discharge for 18 months. The Secretary of State decided to deport him, relying on the 2002 and 2010 offences. The FtT held that the relevant offence was the 2010 offence to which s.117C did not apply. On appeal the UT held that the Secretary of State was entitled to rely on the earlier conviction when considering s.117C(6).

At [18] of Rexha, the UT reasoned thus:

In my view, subject to a consideration of the continuing effect of the letter of 27 October 2012, the changes in the law entitled the respondent to review the appellant’s position and form a view as to whether the circumstances fell within s.117C(6). In R (George) (above), Lord Hughes said this at [31]:

UTJ Kebede summarised the position accurately at [23] of the UT decision:

Mr de Mello relied on the 27 October 2012 letter as an important additional factor in the analysis, arguing that its contents created a legitimate expectation that the respondent would not deport the appellant unless he committed a further offence or came to the adverse notice of the respondent. Since the date of the letter the appellant had committed no crime and had given no cause to come to the adverse attention of the respondent. As the argument developed, Mr de Mello advanced his argument on the basis of unfairness.

The difficulty with the argument, whether put in terms of the thwarting of legitimate expectation or (more properly in this context) unfairness, is that the threshold is high. It requires an unambiguous and unconditional representation, see for example R (Nesiami and ors) v. Secretary of State for the Home Department [2019] 1 WLR 463, [50] or as expressed in terms of legitimate expectation, a promise which is ‘clear, unambiguous and devoid of relevant qualifications’, see Lord Hoffmann in R (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No.2) [2009] AAAC 453 at [60], citing Bingham LJ in R v. Inland Revenue Commissioners, ex p MFK Underwriting Agents Ltd [1990 1 WLR 1545, 1569. It would require that the statement be treated as if contained within it the words, ‘even if there is a change in the law.’ It seems to me that there is no warrant for reading the letter in this way, and no unfairness in the decision to remove the appellant in the light of the change in the law, see also YM (Uganda) at [38] (above). The FtT was fully entitled to conclude

Mr de Mello’s argument was that paragraph 399C of the Immigration Rules was a freestanding provision, unaffected by s.117A-C, which required the respondent to prove that the appellant’s deportation was in the public interest, notwithstanding the previous grant of leave. He submitted that if paragraph 399C is not read as a freestanding provision it leads to the result that someone in the appellant’s position will be subjected to an indefinite ‘Kafkaesque regime’. He referred in this context to Zoumbas v. Secretary of State for the Home Department [2013] 1 WLR 3690 at [10], and to Ullah v. Secretary of State for the Home Department [2019] EWCA Civ 550 at [25].

The argument was another way of putting his overarching submission that an injustice occurs if the Home Department, having rightly accepted the decision of an earlier tribunal, bides its time and then relies on the change in the law brought about by statutory changes and new Immigration Rules. However, it is quite clear that paragraph 399C is not a provision that can be viewed in isolation. The Rules establish an order within which decision-making occurs. The FtT described the appellant as a foreign criminal whose appeal was allowed on article 8 grounds and who was granted short periods of leave in accordance with paragraph 399B, and ultimately discretionary leave. The paragraphs in the Rules deal sequentially with issues that arise in this type of deportation case and are to be read in this way. Mr de Mello has identified no authority to support a contrary view.

Under these headings, Mr de Mello argued that the FtT erred in law in holding that there were not ‘very compelling circumstances’ within the meaning of s.117C(6), it ignored the implicit flexibility within the application of s.117C (see Rhuppiah v. Secretary of State for the Home Department [2018] UKSC 58 at [36]) and failed to consider separately the best interest of the child under s.55 of the Borders, Citizenship and Immigration Act 2009. He relies in particular on the medical condition of the appellant’s youngest child.

The FtT noted that there was ‘a paucity of evidence’ as to compelling circumstances, and that ‘Mr de Mello said there were [compelling] circumstances but did not elaborate what they were.’

The Judge concluded (at §79), in the context of his family’s circumstances, that the deportation of the appellant would be unduly harsh, see s.117C(5), ‘exception 2’. However, no identifiable error of law or approach has been identified in the very careful assessment of the appellant’s family circumstances and the medical position of his youngest child in the light of this conclusion. The Judge addressed the question of whether there were very compelling circumstances over and above those described in exception 2 (at §§80-85); and separately considered the position of the youngest child

So far as the best interests of the children were concerned, she recorded (at §75) that the children’s best interests were a primary consideration, albeit capable of being outweighed by other factors; and that it was in their best interest to be cared for by both parents (at §79). The Judge clearly understood that the best interests militated against deportation.

The suggestion that the Judge’s findings were perverse is wholly unfounded. Ground 6

The final complaint is that the FtT failed to determine the appellant’s article 8

That case was concerned with the application of the Immigration Rules before July 2014, when they were amended and Part 5 of the NIAA was enacted to give statutory authority to the new scheme, see N-EA (Nigeria) [2017] EWCA Civ 239 at [14]-[16], which was referred to by the FtT (at §71). This ground adds nothing to the argument.

For these reasons, I would dismiss the appeal.