Odewale, R (On the Application Of) v Upper Tribunal (Immigration and Asylum)

SIR STEPHEN SILBER: Mr Odewale, who is a citizen of Nigeria, seeks permission to appeal against a decision of Upper Tribunal Judge Kekic made on 5 May 2015 in which she refused the Claimant permission to appeal to the Upper Tribunal against a decision of the First-tier Tribunal promulgated on 23 December 2014 dismissing his appeal against a deportation order made on about 12 May 2014.

To understand the submissions, it is necessary to explain that the Claimant has been convicted in this country on four previous occasions. He received prison sentences on three occasions starting with a sentence of 12 months' imprisonment imposed on him for conspiracy to defraud and making a false statement to obtain a passport imposed in 1999. He had received a sentence of eight years' imprisonment in 2003 for conspiracy to defraud which was reduced on appeal to six and a half years' imprisonment. In December 2011 he was sentenced to two years' imprisonment for five counts of being in possession of false identity documents. He was subject to "automatic deportation" as a foreign criminal.

The present judicial review claim was filed on 28 May 2015. On 23 June 2015 the Government Legal Department wrote to the court on behalf of the Secretary of State for the Home Department indicating that the Secretary of State would not be filing an acknowledgment of service. This was the normal practice of the Secretary of State where the Claimant seeks to judicially review a decision of the Upper Tribunal refusing permission to appeal to that tribunal as such applications are normally dealt with on paper without a hearing.

On 3 August 2015 Kerr J directed the application for permission be listed for an oral hearing. I directed that the Secretary of State for the Home Department should produce a skeleton argument, which was duly served prior to the hearing.

The Secretary of State was represented at the oral hearing by Ms Hafsah Masood, who in her skeleton argument asked me for permission to take part in the oral permission hearing pursuant to CPR 54.9(1)(a) even though an acknowledgment of service had not been served. Mr Manjit Gill QC, who appeared for the Claimant, did not make any representations and duly Ms Masood was allowed to participate.

The Cart Regime

This application for permission falls within the Cart regime. In order to obtain permission, the Claimant has to satisfy the conditions which are set out in CPR 54.7A(7) which provides that:

It is critically important to bear in mind three matters have to be established by the Claimant if he is to succeed. The first is that there is an arguable case which has a reasonable prospect of success that the decision of the First-tier Tribunal is wrong. The second matter is that there is an arguable case which has a reasonable prospect of success that the decision of the Upper Tribunal refusing permission to appeal was wrong. The third matter is either (1) the claim raises an important point of principle or practice or (2) there is some other compelling reason to hear it.

In deciding the first two issues, it is necessary to consider what issues and matters were put before the First-tier Tribunal and the Upper Tribunal in order to decide if their decisions were arguably wrong. I also bear in mind that in JD (Congo) v Secretary of State [2012] 1 WLR 3273 the Court of Appeal explained that the fact that the Upper Tribunal's decision will have very adverse consequences for an applicant seeking permission is capable, in combination with a strong argument, that there has been an error of law amounting to "some other compelling reason for the appeal to be heard".

Mr Gill, counsel for the Claimant, relies on five grounds for obtaining permission.

Grounds of Appeal

His first ground is that the First-tier Tribunal and the Upper Tribunal erroneously proceeded on the basis that in 2003 a confiscation order for £900,000 was made against the Claimant when in fact an order of £98,133 had been made and that such order had been quashed on appeal.

In my view, the existence and amount of the confiscation order was referred to as background to the circumstances leading to the deportation order, but crucially, it was of no relevance to the decision of the First-tier Tribunal dismissing the Claimant's appeal against the deportation order and the decision of the Upper Tribunal refusing permission to appeal.

I therefore conclude that has no prospect at all, and certainly not a reasonable prospect, of success in showing that the decision of the Upper Tribunal refusing permission to appeal was wrong in law on this ground. In addition, this ground fails to meet the threshold of raising an important point of principle or practice or constituting some other compelling reason to hear it.

The second ground of appeal is that the tribunals erred in their approach to Article 8 in a criminal deportation case as they failed to adopt a structural approach. It is said by Mr Gill that the law in this area is not finely established and has to be reevaluated in the light of the changes introduced in July 2014 when sections 117 A-D of the Nationality, Immigration and Asylum Act 2002 and the amendments to the Immigration Rules were introduced. His case is that this is an issue which satisfies the test for obtaining permission as to whether the tribunals failed to take account of the Article 8 rights of the Claimant's children when considering rules 398 and 399 of the Immigration Rules.

Ms Masood contends the second ground was not raised when permission was sought from the Upper Tribunal and there is no reason why the Upper Tribunal should consider it. So she says that there is no arguable error of law in its decision.

I agree. There is no reason why the Upper Tribunal should have considered that point. There is no arguable case which has a reasonable prospect of success that the decision of the Upper Tribunal refusing permission to appeal was wrong by not giving permission on this ground. So permission has to be refused on that ground for that reason, but there are other reasons which I will explain briefly.

Ms Masood submits that so far as deportation is concerned, in the words of Nicol J giving the decision of the Upper Tribunal in the case of the Secretary of State v Chege [2015] UKUT 165 at paragraph 20, the Immigration Rules are a complete code for considering whether a removal would cause a breach of the United Kingdom's obligations under Article 8. He proceeded to state, as was said in paragraph 59 of MF:

Indeed, this approach was approved in AJ (Angola) [2014] EWCA Civ 1386 by Sales LJ at paragraph 40.

I therefore accept Ms Masood's submission which shows that the entire Article 8 assessment, including the issue of proportionality, can be carried out by applying the Rules. This is borne out by cases not only such as Chege, but also KMO (section 117 - unduly harsh) Nigeria [2015] UKUT 00543 in which the Upper Tribunal observed in paragraph 8:

I accept that submission and also the following submission of Ms Masood, which is the First-tier Tribunal when dealing with the facts of this case applied the proper approach to Article 8 and took account of all relevant certain factors.

The First-tier Tribunal Judge began by considering whether the case fell within either paragraph 399 or 399A of the Rules. Having found that the Claimant fell within neither, although the First-tier Tribunal Judge did not refer expressly to the closing words of paragraph 398, namely "very compelling circumstances over and above", he did go on to consider every other relevant factor, including the considerations of part 5A of the Act and the general interests of the Claimant's children. Indeed, as has been stated repeatedly, such as in Dube v Secretary of State [2015] UKUT 0090 at paragraph 26, what matters is substance, not form. Indeed, that is entirely correct in this case.

In reaching the conclusion that this ground two has to be rejected, I have not overlooked the submission made by Mr Gill that permission should be granted because of two recent developments. The first was the decision of Aikens LJ in the Court of Appeal to grant permission in OD (Jamaica) that there were compelling reasons where unjustifiably harsh consequences is arguably not the correct test to apply in Article 8 tests outside the Immigration Rules.

Mr Gill submits that I should grant permission because the Court of Appeal has granted permission. Indeed, I would do so if there was a factual basis on which the Claimant could show that there was an arguable case which had a reasonable prospect of success that a decision of the Court of Appeal could mean that this country would be infringing the Article 8 rights of the Claimant, his partner or his children by deporting him, but this is not such a case because of the facts in this matter.

As I have explained from the passages that I have read, the starting point for any assessment is the recognition of the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children. This point was recently stressed by Moore-Bick LJ in LC (China) [2014] EWCA Civ 1310 at paragraph 24.

This case is a case where the balancing factor in favour of deportation is very high in the light of the Claimant's criminal record. As has been explained, he received three prison sentences for completely separate criminal offences for which he received 11 years' imprisonment during the period between 1999 and 2011. This shows an enhanced ground as to public interest in deporting him.

Against that, there is very strong evidence that on the facts of this case as found by the First-tier Tribunal Judge, the Article 8 rights of the Claimant's children will not be very seriously adversely affected by his removal to Nigeria and them remaining in this country.

There are a number of fact finding conclusions of the First-tier Tribunal which lead me to that view. First, there is the finding that the Claimant and his partner had two children born in 2006 and 2010 who are British citizens and their status and that of their mother is no way dependent on that of the Claimant.

Second, the Claimant's partner has a good managerial job at the Imperial College London. Third, her job may be more demanding than the role she performed when the Claimant was last imprisoned, but then she maintained employment and her family at a time when she had a young baby without any form of help from a childminder or relative.

Fourth, the First-tier Tribunal Judge found that it would not be unduly harsh for the Claimant's children to remain in England, as with their mother they form a close supportive family. He points out that the older child had experienced two periods during his short life when his father was away in prison. That is, in fact, wrong as he had only experienced one period of one year, but nevertheless, the critical factor shows that the children were able to live in a supportive family in this country with their mother, who had a good managerial job.

The final factor is that it would be unduly harsh for the Claimant's children to live in Nigeria and for the Claimant's partner to live there.

All those factors show very clearly that ground two has no prospects of success and that no assistance would be obtained by the Claimant from the decision of a case for which permission has been given in the Court of Appeal in the light of the facts which have been found by the First-tier Tribunal and which have not, in fact, been challenged.

The second recent development relied on by Mr Gill is he stated the Supreme Court is to hear appeals in three linked cases of AQ (Nigeria) [2015] EWCA Civ 250, HA (Iraq) [2014] EWCA Civ 1304 and Makhlouf [2014] EWCA 86, but nothing has been shown to me to suggest that it could have any sufficient relevance to the present case as to even conceivably constitute a ground for granting permission to appeal.

The critical factor is the Claimant's claim is fact sensitive. It does not raise any important point of principle or practice or constitute some other compelling reason to hear this. All these factors, including the fact that this was not raised in front of the Upper Tribunal Judge, satisfies me that I must refuse permission on ground two.

I turn to the third ground relied on by the Claimant, which is that the First-tier Tribunal failed to apply the principles in ZH (Tanzania) that the present interests of the children are a primary consideration and that sins of parents should not be visited on children unless there are competing considerations of very great weight which are sufficient to override those interests.

The answer to that argument is that the First-tier Tribunal, in my view, gave proper consideration to the interests of the children and the Upper Tribunal was not wrong to refuse permission on those grounds. It is noteworthy that in ZH (Tanzania) [2011] 2 AC 186 Baroness Hale said at paragraph 25:

In Zoumbas v Secretary of State [2013] 1 WLR 3860 the Supreme Court summarised the relevant principles, which were common ground between the parties:

I have already referred to what was said in LC (China).

Indeed, I concluded there are no proper grounds for impugning the First-tier Tribunal Judge's approach to the children's best interests. It is not right to say his consideration of the children's best interests, which although a primary consideration was not the only, was limited to paragraph 399 when the First-tier Tribunal gave further interest to the best interests of the children, including their best nationality, at paragraph 52 of his determination.

These considerations are very significant and matters of great importance. It is quite clear that the question of consideration played a material part in the First-tier Tribunal's decision and that separation from their father was taken into account. I conclude, in agreement with counsel for the Secretary of State, that it is plain that the factor at the forefront of the First-tier Tribunal Judge's mind was that with their mother, the children form a close supportive family unit, as shown by what occurred during the last period of his custody.

In any event, there are two other reasons why this ground has to be rejected. First, it failed to meet the threshold of raising an important of important point of principle or practice or constituting some other compelling reason to hear it.

I should add it has been suggested there is an important issue of principle as to whether the current Immigration Rules on deportation, and specifically paragraph 399A of the Immigration Rules, properly cater for the best interests of the children in a manner which complies with Article 8. This point was not raised in the grounds of appeal to the Upper Tribunal. They cannot be criticised for not using it. That is an additional reason why this ground fails.

I now turn to ground four in which the case for the Appellant, it is submitted, is that the First-tier Tribunal erred in law in focussing only on a minimum requirement of allowing an appeal in relation to the Claimant's partner without applying the closing words of paragraph 399A, namely very compelling circumstances, and without applying the overriding test in paragraph 397 of exceptional circumstances in a manner which accorded with Article 8 case law.

This point has to be rejected for the same reasons as I referred to before, namely it was not referred to before the Upper Tribunal. Again, I do not consider it would, in any event, reach the necessary grounds in the light of the way, in fact, the First-tier Tribunal Judge dealt with it and the way that I have explained that to be the position.

I turn now to the second ground referred to in ground four, which is that the First-tier Tribunal Judge erred in failing to recognise that a proper assessment of very compelling or exceptional circumstances in accordance with the Article 8 case law required the First-tier Tribunal to weigh in the scales the dilemma in which the Claimant's partner now finds herself.

To my mind, it is clear that the evidence before the First-tier Tribunal Judge was if the Claimant was deported, she would probably have to move out of London to be nearer her parents. The implication was that she would remain in the United Kingdom with her children. This was the basis on which the First-tier Tribunal carried out the Article 8 assessment, having himself found that it would be unduly harsh for the Claimant's partner and her children to live in Nigeria. It is certainly not the case, as has been suggested, that the Claimant said it was the partner's choice as to where she and, therefore, the children stayed or went with the Claimant. The matter is really a matter of common sense that it was her wish to remain where she has family in this country and where she has a very good job.

I now turn to ground five. The Claimant submits that the First-tier Tribunal erred in law in refusing to accept that the Claimant had been in the United Kingdom for most of his life and in concluding that the person who committed offences cannot be socially and culturally integrated in the United Kingdom for the purposes of paragraph 399A, with respect to the test of social and cultural integration has nothing to do with whether a person committed offences or not.

It is also said that no reasonable First-tier Tribunal could have held that the Claimant was not socially and culturally integrated in this country and that it failed to apply the test of "very significant obstacles so as to ask whether it would be reasonable to expect the Claimant to go to Nigeria". They were repeating the point about the closing words not being considered in paragraph 398 of very compelling circumstances.

In my view, the First-tier Tribunal was entitled to find that the Claimant's repeated offending was the antithesis of social integration. The Claimant contends that no foreign criminal would be capable of satisfying the test in paragraph 398. It does not follow at all that the finding of the First-tier Tribunal was based on the fact the Claimant was a repeat and serial offender. They took account of the nature of the serious offences committed by him. This was not the only factor considered by the First-tier Tribunal Judge. He also had regard to the fact that the Claimant had lived, studied, worked and raised a family in the United Kingdom for 21 years.

I agree with Ms Masood that in any event, not merely did the First-tier Tribunal not err in his approach, but the error was not material to the decision that he went on to conclude, because the judgment did conclude that there would not be very significant obstacles to his integration in Nigeria. This meant that he did not satisfy paragraph 399A. In my view, these constitute very powerful arguments for showing why this ground cannot be accepted either as justifying the grant of permission.

In my view, standing back at the end of the day, but notwithstanding the able arguments of Mr Gill to which I pay tribute, each of these grounds, whether considered individually or cumulatively, do not reach the threshold for granting permission. The Claimant will have the consolation of knowing that every point that could conceivably have been put forward on his behalf has been put forward by Mr Gill, but in the light of the findings of the First-tier Tribunal Judge coupled with the positioning and decisions of English law, this application must be refused.