The Secretary of State for the Home Department v Joseph Hilman Greenwood

This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “ Secretary of State ”) dated 27 June 2013 , whereby it was determined that the deportation provisions of section 32(5) of the UK Borders Act 2007 (the “ 2007 Act “) apply to the Respondent, a national of Jamaica aged 36 years . The impetus for this decision was the conviction of the Respondent in respect of two counts of possession of Class A Controlled Drugs with intent to supply (crack cocaine and heroin), generating a sentence of five years imprisonment, on 23 September 2011.

The history is somewhat protracted and we summarise it thus:

There followed the grant of discretionary leave to remain to the Respondent, ultimately expiring on 06 May 2011.

Between January and September 2011 the Respondent was detained on remand in respect of certain drugs offences.

On 24 June 2011 the Respondent applied for indefinite leave to remain in the United Kingdom based on his marriage to a British citizen on 23 September 2003.

On 23 September 2011 the index convictions were made at Bristol Crown Court.

On 07 October 2011 the Secretary of State refused the Respondent’s indefinite leave to remain application.

By a determination promulgated on 09 February 2012 the First-tier Tribunal dismissed the appeal, finding that the Respondent did not satisfy paragraph 287 of the Immigration Rules and, further, that his deportation would not infringe Article 8 ECHR.

On appeal, the Upper Tribunal held that the FtT had erred in law in its dismissal of the appeal under Article 8. By its decision promulgated on 19 December 2012, the Upper Tribunal remade the decision, dismissing the Respondent’s appeal.

Meantime, on 15 March 2012, prior to the grant of permission to appeal to the Upper Tribunal ( supra ), the Secretary of State transmitted the customary “minded to deport” letter to the Respondent.

This elicited representations on behalf of the Respondent.

Next, on 27 June 2013, the Secretary of State decided that section 32(5) of the 2007 Act was applicable and, on the same date, a deportation order was made.

By its decision promulgated on 23 September 2013, the FtT allowed the Respondent’s appeal. It did so on the single ground that the deportation order (dated 17 June 2013) preceded the decision to deport (dated 27 June 2013). This decision was based on an analysis of various decisions of the 2007 Act and the Nationality, Immigration and Asylum Act 2002 (the “ 2002 Act ”). Having made this conclusion, the FtT declined to determine the second ground of appeal, which was based on Article 8 ECHR. It formulated its decision in these terms:

We shall comment infra on the FtT’s election to decide the appeal in part only.

The Secretary of State was granted permission to challenge the aforementioned decision of the FtT by appeal to the Upper Tribunal which, by its determination dated 04 July 2014, set aside the decision of the FtT. It did so on two main grounds. First, it concluded that there is nothing unlawful where a notice that section 32( 5) of the 2007 Act applies post dates the associated deportation order. We highlight the following passages:

For completeness, b y its order dated 29 April 2015 the Court of Appeal dismissed the Respondent’s application for permission to appeal against the last mentioned decision of the Upper Tribunal.

The FtT allowed the Respondent’s appeal. The basis upon which the judge did so is discernible from the following passages:

The Secretary of State has been granted permission to appeal against this decision. The essence of the grant of permission is contained in the following passage:

the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK , and

the child is a British Citizen; or

the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK , and

the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and

it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and

it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.”

the person has been lawfully resident in the UK for most of his life; and

he is socially and culturally integrated in the UK ; and

there would be very significant obstacles to his integration into the country to which it is proposed he is deported. ”

A s the Respondent ’s personal and family circumstances are rehearsed adequate ly in the decision of the FtT, they need not be repeated here.

In all cases belonging to this sphere, the contest is between the several public interests favouring deportation – deterrence, protecting the public, maintaining firm immigration control and promoting the economic wellbeing of the nation – and the private, personal interests of the offender and , frequently, the members of his family circle. The potency of the public interest in play was emphasised resoundingly by the Court of Appeal in SS ( Nigeria ) v SSHD [2013] EWCA Civ 550. This theme has continued to chime in further decisions of the Court of Appeal. In LC ( China ) v SSHD [2014] EWCA Civ 1310, it was stated, at [21]:

Most recently, in PF (Nigeria ) v SSHD [2015] EWCA Civ 251, the Court of Appeal, having emphasised the supreme importance of the tribunal identifying exceptional, or compelling, factors sufficient to outweigh the public interest in deportation, stated at [43]:

The Secretary of State’s argument also invoke s the recent decision of the Upper Tribunal in Che ge (Section 117D – Article 8 – a pproach) [2015] UKUT 00165. This deci ded , inter alia , that in applying the new provisions of Part 5A of the 2002 Act, the Tribunal should adopt the following sequence:

It is common case that the Respondent is a “ foreign criminal ” within the meaning of section 117D(2 ). Furthermore, paragraph 398 of the Rules applies to this case because the Respondent was sentenced to imprisonment for a period exceeding four years. As a result the Respondent , on appeal to the FtT , could not succeed simply by satisfying paragraph 399 or 399A of the Rules. B y paragraph 398 the Secretary of State , in the first place and the Judge , on appeal , were both obliged to do two things: first, to consider whether paragraph 399 or 399A applies and, if yielding a negative answer, then to consider whether the public interest in deportation wa s outweighed by other factors. This entailed the application of the following test: are there very compelling circumstances over and above those described in paragraphs 399 and 399A?

The gravamen of the argument on behalf of the Secretary of State is that the Judge erred in law by considering paragraphs 399 and 399A en route to his conclusions. W e consider this argument to be fundamentally flawed. Logic, reason and common sense dictate that paragraphs 399 and 339A must be considered in the application of the “over and above” test enshrined in paragraph 398. Indeed a failure to do so, if material, would itself be an error of law. In cases where, as here, the “ over and above ” test is engaged, paragraphs 399 and 399A provide the bridge, or link, between the application of the test and the resulting outcome. Giving effect to the ordinary and natural meaning of the three provisions of the Rules under scrutiny, we consider that:

It requires no manipulation or distortion of the text of the FtT’s decision to conclude that the Judge, in deciding the appeal, gave effect to the approach which we have espoused above and to that contained in Chege . Mr Melvyn, on behalf of the Secretary of State, was driven to accept that the Judge’s decision is replete with correct self-direction s in law. We remind ourselves of the scope for intervention of an appellate tribunal in cases of this kind. This, it may be observed, is sometimes overlooked. In particular, in practice, it is not addressed in the Secretary of State’s grounds of appeal. Nor is it routinely addressed in grant s o f permission to appeal to this Tribunal . Indeed one may also observe , with deference , that in a number of recent decisions of the Court of Appeal the governing principles do not feature.

These principles are based in authority of unmistakable pedigree and binding force. They are contained in Edwards v Bairstow [1956] AC 14. While their Lordships were not uniform in their formulation of the governing principle, it suffices to recall what Lord Radcliffe stated (at page 9 ):

The second question which arises is whether the Judge committed any error of law in his application of the correct legal test. We find no such error. In the context of the present appeal there is no suggestion that the Judge left out of account any material evidence . N or can it be suggested that the Judge allowed anything extraneous to enter the equation . The touchstone for intervention is irrationality. This Tribunal can find an error of law in the context of this appeal only if the outcome of the application of the correct legal test is vitiated by irrationality. Th is is a self-evidently elevated threshold, one which is rarely satisfied in practice and which , interestingly , does not feature expressly in many of the recent Court of Appeal decisions belonging to this sphere. The test for irrationality has been formulated in a variety of tried and trusted ways. Was it reasonably open to the Judge taking into account all material factors and disregarding everything extraneous to reach the conclusion under challenge? Another formulation is: did his conclusion fall within the band , or range , of conclusions reasonably open and available to him? T here is also the repeated admonition to appellate courts and tribunals that what they might have done as a first instance court or tribunal is not in point . Thus while it may be that not every first instance immigration judge would have reached the conclusion under challenge in this appeal this does not vitiate in law the deci sion.

The Upper Tribunal has the impression that the Secretary of State, as a matter of routine , applies for pe rmission to appeal in every deportation appeal in which the appell ant succeeds before the FtT. Furthermore, the grounds of appeal are frequently formulated in bland and formulaic terms. Thirdly, the grounds of appeal rarely, if ever, engage with the governing principles which we have rehearsed above. We would suggest that these observations be carefully considered by those who compile applications for permission to appeal and the Judges who decide them.

If there is indeed a practice of this kind it must be disapproved . To slavishly apply for permission to appeal to the Upper Tribunal in every deportation appeal resolved in favour of the appellant, if this be the practice, is not a proper or legitimate invocation of this Tribunal’s jurisdiction. Decisions on whether to apply for permission to appeal should be the product of conscientious and considered evaluation of the first instance judicial decision in every case. This, we consider, is what was contemplated by the legislature in making provision for this mechanism. Inundation of the Upper Tribunal with permission to appeal applications in every case belonging to a given category cannot be considered harmonious with the Parliamentary intention. Moreover, it is unfair to other tribunal users and undermines the important values of legal certainty and finality, which are two of the cornerstones of our legal system .

We have highlighted in [3] above the first of the two orders of the FtT, namely “ r emittal” to the Secretary of State . Fundamentally, wherein reposes the power to remit? The operative statutory provision in this context is section 86 of the 2002 Act, as amended by the Asylum and Immigration (Treatment of Claimants) Act 2004, per paragraph 18 of Schedule 2, effective from 04 April 20 0 5 , and the Immigration , Asylum and Nationality Act 2006, per paragraph 4 of Schedule 1, effective from 31 August 2006 . Its predecessors were paragraph 21 of Schedule 4 to the Immigration and Asylum Act 1999 and section 19 of the Immigration Act 1971. Prior to its most recent amendment, section 86 provided :

We consider it clear that prior to the most recent amendment of section 86, the FtT, in determining statutory appeals, had two main choices viz to allow or dismiss the appeal. A third and fourth option were also available. The third option was to allow an appeal and, simultaneously, to make directions in order to give effect to its decision, per section 87 of the 2002 Act as amended. However, this has been repealed by paragraph 37 of Schedule 9 to the Immigration Act 2014, effective from 20 October 2014. Thus [17] of Greenwood (Automatic Deportation: Order of Events) [2014] UKUT 00342 (IAC) , which predated this statutory development, must be read with this adjustment. The fourth possible outcome of an appeal to the FtT, as Greenwood noted, was the following. If the effect of the Tribunal’s decision was to conclude that the decision of the Secretary of State under appeal was unlawful and the Tribunal did not substitute another decision:

i f the decision of the Secretary of State involved a determination of an application made by the litigant, a lawful decision remains to be made by the Secretary of State – and it is preferable that the FtT say so clearly;

a lternatively, if the challenge in the appeal was to an “own motion” decision of the Secretary of State, it would be a matter for the Secretary of State to decide whether a further decision should be made in the wake of the FtT’s decision.

As noted above, in the seemingly interminable merry-go-round of legislative activity, section 86 has undergone a significant recent amendment. This is linked to the wholesale reduction in statutory rights of appeal e ffected by the amendments introduced by the Immigration Act 2014, operative from 20 October 2014. In this context, the exercise of juxtaposing the new section 82 with its predecessor is enlightening. This reduction in appealable decisions is accompanied by a significant pruning of the permitted grounds of appeal, which are enshrined in section 84. By section 85, the FtT is obliged to consider certain matters. By this route one arrives at section 86, which bears the cross heading “Determination of Appeal”.

In notable contrast with its predecessor, the new section 86 does not reproduce the two basic options of allowing or dismissing the appeal. In this respect, the drafting is both surprising and infelicitous. However, applying elementary dogma, it is t he function of every appellate tribunal and c ourt to resolve appeals, normally by allowing or dismissing them , unless directed otherwise by statute . I consider that any reconfiguration of this basic model would, given the legislative history, require clear and elaborative new provisions. There are none. The new statutory language is “ determine ”. I conclude that this encompasses the two basic options of either allowing or dismissing an appeal. The third option – noted in [21] above – of allowing an appeal with directions has clearly been extinguished by the repe a l of section 87 of the 2002 Act. I consider, however, that the fourth option noted above, with its two dimensions, continues to apply. This has been a feature of UTIAC jurisprudence for some years and, in the new legislation, Parliament has not taken the opportunity to interfere.

The effect of this analysis is that the answer to the question posed in [20] above is uncompromising: the FtT has no power to remit a case to the Secretary of State for any purpose. The principle which underpins this conclusion is that the FtT is a creature of statute and its powers are exclusively statutory in consequence. Any course which the statute does not, expressly or by implication, permit is forbidden. In this respect, the FtT is to be contrasted with the High Court which, by tradition of some longevity, is acknowledged to possess an inherent jurisdiction . The FtT cannot lay claim to possession of comparable powers.

This analysis is consistent with the limited jurisprudence bearing on this subject. In Haddad [2000] INLR 117, the IAT decided that the adjudicator had no power to remit to the Secretary of State an unconsidered and undetermined claim but should, rather, determine such claim as primary decision maker. The Court of Appeal espoused the same approach in R (Zaier) v Secretary of State for the Home Department [2003] EWCA Civ 937. The FtT is also constituted primary decision maker in cases where new claims are raised by the appellant in response to a so-called “one stop” notice in accordance with sections 85(2) and 120 of the 2002 Act: see AS ( Afghanistan ) v Secretary of State for the Home Department [2009] EWCA Civ 1076. Similarly, in circumstances where the Secretary of State has not made a decision on whether the appellant has a Community law right to remain in the United Kingdom or in respect of the best interests of an affected child, the FtT must make the primary decision: see VM (Zambia) v Secretary of State for the Home Department [2009] EWCA Civ 521 and DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305.

Finally, we have drawn attention, in [8] above, to the disconnect between the grant of permission to appeal and the case presented on behalf of the Secretary of State at the hearing. We also received the customary 11 ^th hour skeleton argument on behalf of the Secretary of State. The timing of its advent compares with that which occurs in relation to Rule 24 Notices in a disturbingly high percentage of cases. We take this opportunity to emphasise, not for the first time, the impropriety of each of these practices and the breach of the Tribunal’s pro cedural rules which they entail .

We are satisfied that applying the correct legal criteria and principles this decision withstands scrutiny. Accordingly we dismiss the appeal of the Secretary of State and affirm the decision of the FtT.