Amir Ali v Secretary of State for the Home Department

Section 76 of the Nationality, Immigration and Asylum Act 2002 empowers the Secretary of State to revoke indefinite leave. Under certain circumstances, one of the conditions of the exercise of the discretion to do so is that the person “is liable to deportation”. What precisely does that phrase mean, particularly when the person is a “foreign criminal” within the meaning of s 32 of the UK Borders Act 2007?

There are, we are told, no decided cases on the question. Permission to appeal to the Upper Tribunal was granted in this case so that the matter could be decided at this level. In these circumstances it is particularly unfortunate that the Home Office Presenting Officer was not prepared to make any detailed submission on the wording of the relevant statutory provisions. With the help of the parties we are, however, reasonably confident that we have been able to identify them. Although the journey through them is slightly convoluted, it appears to us that the answer is clear.

It is convenient to begin by setting out the relevant statutory provisions.

In the Nationality, Immigration and Asylum Act 2002, s 76 is, so far as relevant, as follows:

We do not need to set out the provision defining “indefinite leave”, but s 3 of the Immigration Act 1971 is clearly of importance. Subsections (5) and (6) are as follows:

The UK Borders Act 2007 introduced a process of automatic deportation of “foreign criminals” as defined. By s 32, a “foreign criminal” is a person who is not a British citizen and is convicted in the United Kingdom of an offence, and either is sentenced to a term of imprisonment of over 12 months, or is sentenced to a term of imprisonment on conviction of a specified offence.

Subsections (4) and (5) are as follows:

Section 33 is headed “Exceptions”. The relevant provisions are as follows:

The appellant is a national of Pakistan. He came to the United Kingdom in 2004 with his mother: he was then aged 14. They came to join his father, who was settled here. The appellant was granted indefinite leave to remain, with his mother and other siblings, on 31 May 2006.

In November 2008 he was convicted on counts of robbery and handling stolen goods. He received concurrent sentences, the longest being of 21 months detention in a young offenders’ institution. There is no doubt that he is a “foreign criminal” within the meaning of the 2007 Act.

The appellant was invited to submit any reasons why he should not be subject to automatic deportation. He gave written reasons and attended an interview conducted by a representative of the respondent. He observed that he had been in the United Kingdom for nearly 15 years, that he had indefinite leave to remain, and that his siblings were British citizens.

The Secretary of State’s response was a letter dated 1 October 2009, reading, so far as relevant, as follows:

A further letter was sent on 20 November 2009, informing the appellant of the Secretary of State’s intention to revoke his Indefinite Leave to Remain. The relevant parts of that letter are as follows:

The appellant made no further comments. The decision to revoke his indefinite leave to remain was made on 29 December 2009, by Notice of Decision and accompanying letter both with that date. The accompanying letter sets out a summary of the appellant’s relevant history and of s76. It continues as follows:

The letter goes on to indicate that there is a right of appeal against that decision, but that the appellant should surrender the letter granting him indefinite leave to remain.

The Notice of Decision is in the following terms:

The appellant appealed to the Asylum and Immigration Tribunal. Following the abolition of that Tribunal, his appeal took effect as an appeal to the Immigration and Asylum Chamber of the First-tier Tribunal. Following a hearing on 12 July 2010, Immigration Judge Meah dismissed his appeal, concluding that the power under s 76 was exercisable in his case. The Immigration Judge also clearly took the view that it was rightly exercised. Permission to appeal to this Tribunal was refused by the First-tier Tribunal, but granted on re-application to the Upper Tribunal. Senior Immigration Judge Warr noted that the ambit of s 76 was “new territory” and said that it was right to grant permission to appeal to consider the appellant’s as yet untested arguments.

As we remarked at the hearing, it seems odd to describe a person who cannot be deported as “liable to deportation”. It is, however, clear that the statutory provisions rule out a conclusion based on that simple observation. “Liable to deportation” has, as s 76(4) provides, the meaning given by subsections (5) and (6) of s 3 of the 1971 Act. It would appear to follow from that that liability to deportation for the purposes of s 76 can arise in three ways. They are the ways set out in those subsections, and are, first, the deeming by the Secretary of State that the person’s deportation is conducive to the public good (s 3(5)(a)); secondly, the making of a deportation order against another person to whose family the person in question belongs (s 3(5)(b)); and thirdly, the recommendation of the person’s deportation by a court under s3(6).

None of those has happened in this case. Mrs Cantrell was clear in her acceptance that the Secretary of State has not indicated that she deems this appellant’s deportation to be conducive to the public good; there is no scope for the application of s 3(5)(b); and, although the appellant has been convicted of an offence in relation to which the court could have recommended his deportation, it did not do so.

So far, therefore, the appellant is not “liable to deportation” within the meaning of s 76. The question, then, is whether ss 32 and 33 of the 2007 Act make any difference.

As we have said, there can be no doubt that the appellant is a “foreign criminal” within the meaning of s 32. But s 32(5), requiring the Secretary of State to make a deportation order, is subject to s 33, and it is clear that the Secretary of State took the view (which is, of course, not contested) that the appellant’s removal would breach rights under the European Convention on Human Rights. Exception 1 in s 33(2), therefore, applies to this appellant. The clear consequence of that is that s 32(5) does not apply to him: there is no obligation to make a deportation order against him. The position in relation to s 32(4) is a little more obscure. Section 33(1) says that it does not apply, but that is subject to subsection (7). And subsection (7) provides that s 32(4) does, after all, apply “despite the application of Exception 1 or 4”. The provision of subsection (7)(b), leaving open the question of whether deportation is conducive to the public good, therefore applies only to the other Exceptions.

Thus the journey through s 33 takes us back to where we started, which is at s 32(4). For the purpose of s 3(5)(a) of the 1971 Act, the deportation of the appellant “is conducive to the public good”.

That provision is clearly relevant to liability to deportation under s 3(5)(a), but it is not the whole story. Liability to deportation under s 3(5)(a) arises only if the Secretary of State deems that person’s deportation to be conducive to the public good. The effect of s 32(4) of the 2007 Act is that, by statute, his deportation is conducive to the public good; so that, if the Secretary of State does (also) deem it to be conducive to the public good, there can be no argument about the basis for the Secretary of State’s conclusion. But, as we see it, under s 3(5)(a) of the 1971 Act, the decision of the Secretary of State (or an officer) is a crucial requirement. That paragraph cannot possibly be read as if it provided merely that a person is liable to deportation if his deportation is conducive to the public good.

As we have said, the Presenting Officer before us accepted that the Secretary of State has reached no such conclusion in the present case. It follows that, although the effect of the statutory provisions is that his deportation is conducive to the public good, he is not “liable to deportation” because the Secretary of State has not deemed his deportation to be conducive to the public good. She is presumably at liberty to do so: but, until she does so, the provisions of s 3(5)(a) of the 1971 Act do not apply to him, and, in consequence, those of s 76 of the 2002 do not either.

That is sufficient to dispose of this appeal. As a result, we have not needed to consider whether it is right to describe a person whose Convention rights prohibit his removal as a person who “cannot be deported for legal reasons”. Mr Muman’s submission would have been that it is not. He did not need to expand on his skeleton argument on the issue before us, and we reach no concluded view on this. In case the matter arises in some other case, however, the following observations may be apposite. First, any interpretation of the phrase “for legal reasons” in s 76(1) needs to be able to take into account the contrast with the phrase “for legal or practical reasons” closing subsection 76(2). Secondly, as the Secretary of State’s decision letters in the present case indicate, a right under Article 8 is not necessarily a permanent right. A Convention right prohibiting removal may reduce or vanish in the course of time or by reason of subsequent events. Thirdly, it is not easy to see why a person who cannot be deported because of a right that he has, that is protected by the law of the United Kingdom should not be regarded as a person who “cannot be deported for legal reasons”. We say no more than that.

Mr Muman was also prepared to argue that it was a breach of the appellant’s human rights to replace a grant of indefinite leave to remain by a grant of three years’ discretionary leave. We have noted what is said in his skeleton argument. We think it is unlikely that it would have persuaded us to allow his appeal.

The position is simply that, for the reasons we have given, the Secretary of State could not in the present case exercise powers under s 76, and that her decision was accordingly not a lawful one. The Immigration Judge erred in concluding that it was. We allow the appellant’s appeal.