EYF (Turkey) v Secretary of State for the Home Department

This is an appeal against the decision of Judge Eyre QC sitting in the Upper Tribunal (Immigration and Asylum Chamber) [“UT”] made on 29 June 2017 which upheld the decision of Judge Macdonald sitting in the First-tier Tribunal [“FtT”] on 4 July 2016, to dismiss the appellant’s appeal against the Secretary of State’s refusal to revoke the deportation order made against him. Permission to appeal to this court was granted by Hickinbottom LJ on 14 August 2018. The appellant has been granted anonymity.

The facts are not in dispute and are set out at paragraphs 4 to 15 of the FtT’s judgment. They can be summarised for the purpose of this appeal in the following way.

The appellant is a citizen of Turkey. On 22 November 2000 the appellant entered the United Kingdom and claimed asylum with his family. On 15 January 2001 his asylum claim was refused. He appealed that decision and his appeal was dismissed on 22 August 2001.

On 11 February 2003 the appellant went to Manchester Airport with his wife and seven-year old daughter. Outside the entrance to the airport’s terminal building he set various immigration papers alight. When police officers arrived he poured petrol over himself, his wife and his daughter and he threatened to set himself and his family on fire. He splashed the officers with petrol. On 12 February the appellant was convicted of the offence of affray. On 6 March 2003 he was sentenced to two years imprisonment.

On 6 February 2004 the appellant was served with notice of the decision to make a deportation order against him. The appellant appealed that decision. His appeal was dismissed on 4 November 2004 and leave to appeal was refused on 17 January 2005. Accordingly, on 3 February 2005, the appellant’s appeal rights were exhausted and on 14 September 2005 he was deported to Turkey.

On 28 January 2008 the appellant applied for entry clearance to enter the UK from Turkey. The application was refused because of the appellant’s outstanding deportation order. The appellant appealed the decision. On 5 February 2009 the FtT allowed his appeal. However, on appeal to the UT, the Secretary of State’s decision to refuse the appellant entry clearance was upheld. The appellant sought leave to appeal to the Court of Appeal. Permission was refused on 9 October 2009.

On 17 November 2009 the appellant applied for the deportation order to be revoked.

On 23 May 2013 a further application was made for revocation of the deportation order. A decision by the Secretary of State refusing to revoke the deportation order

Part 13 of the Immigration Rules sets out the Secretary of State’s policy in relation to deportation where the procedure for deportation set out in section 5 of the Immigration Act 1971 applies. Paragraphs 390 to 392 of the Rules address the revocation of a deportation order. The relevant paragraph of the Rules for this appeal is paragraph 391:

“391.

In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course:

(a)

in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case-by-case basis to whether the deportation order should be maintained, or

(b)

in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,

Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors.”

It is the wording of paragraph 391(a) which is central for present purposes.

In the UT Judge Eyre QC noted that the appellant had two grounds of appeal against the decision to maintain his deportation order:

The UT rejected the first ground on the basis that the decision when read as a whole demonstrated that the judge did not err in law. The FtT judge considered the public interest and the proportionality arising from it in the light of the particular circumstances of this appellant and considered those circumstances with care. That included, at paragraph [119], an express comparison between the effect on the family life of the appellant and the public interest deriving from the offence, i.e. a proportionality balance. Judge Eyre characterised the appellant’s interpretation of the FtT’s decision as artificial.

The UT rejected the second ground on the basis that paragraph [101] of the FtT judgment, which referred to public revulsion, when read in context, showed that revulsion was not a factor that was being taken into account separately. The judge was taking into account the gravity of the offence and that was appropriate having regard to what was described as ‘factor (c)’ in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694,which relates to public confidence in the treatment of foreign citizens who have committed serious crimes.

The UT accordingly concluded that neither of the appellant’s grounds could be sustained and the appeal was dismissed.

Before this court, the appellant applied for permission to appeal on two grounds. Hickinbottom LJ granted permission only in relation to the construction by the FtT and UT of paragraph 391(a) of the Immigration Rules. Although Mr Chirico, who appears on behalf of the appellant with Ms Robinson, made brief submissions about the description of the offence relied upon by the judges below, he cannot out of that construct a ground of appeal and, in fairness to him, no application for renewed permission has been made.

Mr. Chirico puts the appellant’s case three ways. First, he submits that paragraph 391(a) of the Immigration Rules should be construed as meaning that once an applicant has complied with the prescribed period (in this case 10 years) a new ‘presumption’ arises to the effect that the fact of the making of a deportation order in consequence upon the criminal offending cannot of itself justify the continuation of the order beyond the prescribed period. Alternatively, Mr Chirico submits that at the very least this should be the starting point of the court’s analysis in a case of this kind.

In the further alternative, Mr. Chirico submits that paragraph 391(a) should be construed to mean that an applicant’s compliance with a deportation order for the prescribed period must carry ‘very significant weight’ in favour of a decision to revoke it to the extent that it counterbalances the public interest in the maintenance of the deportation order.

Mr Byass appears on behalf of the Secretary of State. In a concise and clear oral argument, he submitted that after the prescribed period has elapsed, there is no presumption either way. Each applicant must be taken on his or her merits.

I shall summarise the various arguments for and against the interpretations advanced. The appellant submits that:

It follows that the appellant submits that a presumption or starting point in favour of revocation has to be read into the wording of the Rule on the basis that it is a necessary inference or implication given the overall context of the scheme that is being operated.

The Secretary of State submits that:

Although the court has had the advantage of an extensive tourd’horizon of the scheme from Mr. Chirico, the only issue before this court on the appeal concerns the proper construction of paragraph 391(a) of the Immigration Rules. It is apparent from the parties’ submissions that there has been some inconsistency in that construction. I bear in mind that Immigration Rules are not to be construed strictly as if they are statutes.

In Smith (paragraph 391(a) – revocation of deportation order [2017] UKUT 166 (IAC), the UT (Judge Canavan) held at [23]:

In SU (Pakistan) v Secretary of State for the Home Department [2017] EWCA Civ

In Smith, the UT considered that its reasoning was supported by this court in ZP (India) v Secretary of State for the Home Department [2015] EWCA Civ 1197. One of the issues in ZP (India) was the impact on the proportionality balance of the prescribed period in the circumstance that early revocation within the prescribed period was being considered. In that context, it is hardly surprising that at paragraph [25] of the judgment Underhill LJ said that the “default position must be that deportees should ‘serve’ the entirety of the prescribed period in the absence of specific compelling reasons to the contrary.”

I can detect no support for the propositions advanced by the appellant in this appeal from that conclusion and I do not agree that ZP (India) supports the reasoning of the UT in Smith. Underhill LJ at [25] of ZP (India) was clear that the proposition that the public interest in maintaining the deportation order would generally diminish over time was only accepted up to a point. That point was the duration of the prescribed period. That says nothing about the asserted existence of a new presumption at the end of the prescribed period. Indeed, it rightly in my judgment leaves the question at large. Furthermore, it is of note that the wording of the Rule changed after the decision in ZP (India) to add-in by amendment the words that are critical to the interpretation relied upon by the Secretary of State.

The Strasbourg case law relied upon by the appellant does not take the question any further. In Maslov v Austria (168/04: 23/06/2008)at paragraph [98] the Grand Chamber says “The Chamber referring to the Court’s case-law, has rightly pointed out that the duration of an exclusion measure is to be considered as one factor among others”. Nowhere does the ECHR say that the duration of an exclusion measure must be given presumptive weight (one way or the other) in the balancing exercise.

The plain language of the Rule supports the Secretary of State’s position and I would, with respect, agree with the obiter comments of David Richards LJ. There is an obvious advantage in taking the plain meaning of words as he has done: the clarity of understanding and consistency of application that are necessary in a tribunal is made all the more likely. Rule 391(a) works perfectly well without implying any further words.

Within the ten year period, it will be very difficult for other factors to counterbalance the presumptive effect of the Secretary of State’s policy. That is consistent with the decision of this court in ZP (India). Once the ten year period has elapsed it becomes easier to argue that the balance has shifted in favour of revocation on the facts of a particular case because the presumption has fallen away; but that does not mean that revocation thereafter is automatic or presumed. The question of revocation of a deportation order will depend on the circumstances of the individual case.

That is consistent with the scheme described by the Supreme Court in Hesham Ali

For these reasons, I would dismiss the appeal.

I agree.

I also agree.