Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14611/2018

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 4 May 2022
On the 20 June 2022

Before

THE HON. MR JUSTICE LANE, PRESIDENT
MR C M G OCKELTON, VICE PRESIDENT

Between

CHENGLIANG BAO
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms E. Daykin, instructed by Fladgate LLP Solicitors.
For the Respondent: Ms S. Cunha, Senior Home Office Presenting Officer.

DECISION AND REASONS
1. The appellant is a national of China, who came to the United Kingdom in 2009, when he was aged 21. He has had subsequent grants of leave, the most recent being due to expire on 19 April 2018.
2. On 8 March 2018 the appellant was convicted in the Crown Court at Manchester of seven offences contrary to s 6(1) of the Identity Documents Act 2010. He was sentenced to imprisonment of 321 days on each count, concurrent. On 16 April 2018 the Secretary of State gave notice to the appellant of a decision to deport him on the grounds that his deportation would be conducive to the public good. The Secretary of State invited him to give any reasons why he should not be deported. On 18 May 2018 he made a claim, supported by written evidence, that his deportation would be unlawful as a disproportionate interference with his private and family life, as protected by article 8 of the European Convention on Human Rights. On 25 June 2018 the Secretary of State gave notice of the refusal of that claim.
3. Meanwhile, by a letter dated 12 April 2018, the appellant’s solicitors had applied to the Secretary of State for extension of his leave. The letter declared his criminal conviction, though rather understating both it and the sentence. The letter declared that the appellant’s position was that he was wrongly convicted and that he “is in the process of appealing”. The Secretary of State’s letter of 25 June 2018 refused that application on the ground that in the view of the Secretary of State, his offending had caused serious harm.
4. The Secretary of State’s notice of these various decisions carries a right of appeal. Appealable decisions, and the permissible grounds of appeal, are as set out in ss 82 and 84 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). There is no appeal against a decision to make a deportation order (or against the deportation order itself); there is no appeal against the refusal to grant further leave to remain. There is, however, an appeal under s 82(1)(b) if “the Secretary of State has decided to refuse a human rights claim”. The only permitted ground is that set out in s 84(2): “that the decision is unlawful under section 6 of the Human Rights Act 1998”.
5. The appellant exercised his right of appeal. His appeal was heard by Judge Monson by remote means on 5 January 2021. Judge Monson dismissed the appeal. Later in this decision we shall set out the route by which the appellant’s appeal is now before this Tribunal. But first we must make reference to the law.
6. The relevant statutory provisions are as follows. First, s 3(5)(a) of the Immigration Act 1971 (“the 1971 Act”) provides that a person who is not a British citizen “is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good”. Section 5(1) of the same Act provides that where a person is under s 3(5) liable to deportation, the Secretary of State may make a deportation order against him.
7. Part 5A of the 2002 Act is headed “Article 8 of the ECHR; Public Interest Considerations”, and s 117A provides that Part 5A applies:
“… where a court or tribunal is required to determine whether a decision made under the Immigration Act –
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.”

8. The rest of the Part consists of three sections. Section 117B sets out public interest considerations “applicable in all cases”; s 117C sets out “additional considerations in cases involving foreign criminals”, and s 117D contains interpretation provisions, including the following:
“(2) in this Part “foreign criminal” means a person –
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(c) who –
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.”
9. Amongst the “additional considerations involving foreign criminals” in s 117C are the following provisions:
“117C(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.”
10. In the Immigration Rules, Part 13 is headed ‘Deportation’. Paragraph 363 repeats the provision we have already set out from s 3 of the 1971 Act, that the circumstances in which a person is liable to deportation include “where the Secretary of State deems the person’s deportation to be conducive to the public good”. The following provisions are largely procedural, but paragraphs 396-7 provide as follows:
“396. Where a person is liable to deportation the presumption shall be that the public interest requires deportation. It is in the public interest to deport where the Secretary of State must make a deportation order in accordance with section 32 of the UK Borders Act 2007.
397. A deportation order will not be made if the person’s removal pursuant to the order will be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention. Where deportation would not be contrary to these obligations it will only be in exceptional circumstances that the public interest in deportation is outweighed.”
11. The last Section of Part 13 is headed ‘Deportation and Article 8’, and by paragraph A398, applies where a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under article 8 of the Human Rights Convention. The substantive provisions, which are similar to those in Part A of the 2002 Act, are in paragraphs 399 and 399A. The phrase “foreign criminal” has no definition in the Immigration Rules, but paragraph 398 provides that the substantive provisions of paragraphs 399 and 399A apply to cases where the deportation of the person from the UK is conducive to the public good and in the public interest (a) following conviction of an offence and a sentence of at least four years; (b) following conviction of an offence and a sentence of imprisonment between twelve months and four years; or (c) “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”. That paragraph goes on to provide that where paragraphs 399 and 399A fall to be applied, the Secretary of State will determine whether either of them applies, and, if they do not, “the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A”.
12. We refer to article 8 of the Convention on Human Rights as scheduled to the Human Rights Act 1998 only in order to remind ourselves that an interference with an article 8 right can be permitted only on the grounds set out in the second paragraph of that article; one of the requirements is that the interference is “in accordance with the law”.
13. As we have noted, a number of the considerations listed in paragraphs 399 and 399A of the Immigration Rules are the same as those in Part 5A of the 2002 Act. In Chege [2016] UKUT 00187 (IAC), this Tribunal decided that the phrase “is a persistent offender” must carry the same meaning in both places. There can be little doubt that the same applies to other phrases which are identical in the two sets of provisions.
14. The effect of Part 5A itself is clear: these are the factors that a court or tribunal must itself take into account in assessing whether the interference in a person’s article 8 rights is justified. Identification of the appellant as a “foreign criminal” within the meaning of Part 5A is a precondition to the application of s 117C. It follows that it is for the court or tribunal to determine whether the appellant falls within those provisions, which, in the case of a person who has not been sentenced to a period of at least twelve months, will require an assessment of the relevant facts in order to determine the matter: see SC (Zimbabwe) v Home Secretary [2018] EWCA Civ 929 at [19], and R (Mahmood) v Upper Tribunal [2020] EWCA Civ 717 at [56]. The Secretary of State’s view is no doubt a relevant factor, but it is not determinative. It is likely, however, to be treated as a starting point, because without the Secretary of State’s characterisation of the individual as falling within paragraph 398(c), it is unlikely that the court or tribunal would consider it necessary to determine the issue at all. Be that as it may, the conclusion which will be reached is that the person is, or is not, a “foreign criminal” within the meaning of Part 5A, and that conclusion will necessarily affect the way in which the court or tribunal applies Part 5A in the case before it.
15. The question then arises whether the Tribunal’s decision that (for example) the appellant’s offence was not one that caused serious harm has any wider impact on the appeal. In particular, if the Tribunal reaches that view, does it follow that the Secretary of State’s decision based on the Secretary of State’s view that the offence was one that caused serious harm, was wrong or unlawful? If the expressed reason for making the deportation order was a reason that the Tribunal considers incorrect, it might be thought that the deportation order itself was, at least, questionable. This issue was considered in detail, with full examination of the authorities, by a Presidential panel of this Tribunal (Lane J and UTJ Keith) in Wilson [2020] UKUT 00350 (IAC). Their conclusion was summarised in the headnote as follows:

“B. Deportation decisions and human rights appeals

(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State’s view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.
(2) The Secretary of State’s decisions under the Immigration Act 1971 that P’s deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal.”
16. In that case, the First-tier Tribunal Judge had, in a manner that this Tribunal determined was without error of law, concluded that the offence committed by the appellant before him was not one that had caused serious harm so as to make the appellant a “foreign criminal” for the purposes of Part 5A of the 2002 Act. The judge had then gone on to say this:
“28. Because I have accepted that the appellant has not committed an offence that has caused serious harm, then the decision of the respondent is not in accordance with the law. The deportation order should not have been issued and it would be disproportionate to remove the appellant from the jurisdiction of the United Kingdom.”
17. In other words, the judge thought that this decision under Part 5A meant that the Secretary of State was not entitled to reach the view upon which the deportation decision was made, and the latter was accordingly to be regarded as an unlawful one, incapable of meeting the requirements of article 8.2. Thus, for the purposes of article 8, the interference was not “in accordance with the law”, and no other issues arose.
18. The judge expressly based that conclusion on a passage in Charles [2018] UKUT 00089 (IAC). That was, however, on a rather different point, because the conclusion of the First-tier Tribunal in that case was that s 7 of the Immigration Act 1971 applied to the appellant. That section provides that, in certain circumstances there set out, a person is not liable to deportation. The finding that s 7 applied accordingly meant that the deportation order purportedly made against the appellant was invalid.
19. As the Tribunal pointed out in Wilson, there is a clear difference between a case in which a deportation order cannot, on the facts, lawfully be made, and a case in which a deportation order can be made if the Secretary of State takes a particular view of the facts. The First-tier Tribunal judge in Wilson had failed to appreciate that distinction. In Charles the decision of the Tribunal meant that there could be no deportation order; in Wilson the decision of the Tribunal meant simply that the Tribunal differed from the Secretary of State’s assessment. Further, the questions to be asked by the Secretary of State and by the Tribunal in Charles were the same question: on the facts does s 7 apply? In Wilson, however, the question for the Tribunal was different for the question of the Secretary of State. For the Tribunal, the question was ‘has the offence caused serious harm?’ For the Secretary of State, the question was ‘in my view, has the offending caused serious harm?’ The appeal process did not mean that the judge was entitled to exercise the Secretary of State’s judgment or to substitute its view for that of the Secretary of State, in a matter which was specifically expressed to be a matter for the latter’s view or assessment: see now R (Begum) v SIAC [2021] UKSC 7.
20. It followed, as the Tribunal decided in Wilson, that the mere fact that the Tribunal reached under Part 5A a view that was different from the Secretary of State’s view did not mean that the latter was unlawful. It would be so only if the Tribunal decided that the Secretary of State was not entitled to reach the view that she did. That conclusion was properly summarised in terms of the need to discover a public law error in the Secretary of State’s decision, rather than simply showing a difference in the conclusion.
21. The present case, as presented to the First-tier Tribunal, was in essence on all fours with Wilson. In oral argument, Ms Daykin on behalf of the appellant submitted that the Secretary of State had failed to prove that the appellant had been convicted of an offence which had caused serious harm, and that the appeal should therefore be allowed without the need to consider any other matters. She said she derived this proposition from Mahmood. After the hearing, apparently having become for the first time aware of the decision in the case of Wilson, she submitted, with permission, a supplementary set of submissions, in which she said that Wilson was wrongly decided but that, if the Tribunal was to follow Wilson, it should, in making the proportionality assessment, give little or no weight to the public interest and therefore strike the balance in favour of the appellant.
22. The judge applied Mahmood and Wilson. He determined that the appellant was liable to deportation, because the Secretary of State had indicated that his deportation would be conducive to the public good. He had not, however, been convicted of an offence which caused serious harm. He continued, however, as follows:
“44. The consequence of this is that the appellant is not a foreign criminal for the purposes of the statue, and the appellant does not have to bring himself within paragraphs 399 or 399A of the Rules in order to succeed in his human rights claim.”
23. Having dealt with, and dismissed, a claim based on article 3 of the ECHR the judge turned to article 8 with the following words:
“56. Turning to the appellant’s Article 8 claim, the appellant falls well short of meeting the requirements of Paragraph 399A of the Deportation Rules. In particular, he is a long way off from having resided in the UK for more than half his life, and he has not shown (even to the lower standard of proof) that he would encounter very significant obstacles to re-integrating into Chinese life and society.
57. Thus in normal circumstances he would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation in order for the public interest in his deportation to be outweighed. However, since the appellant does not come within the framework of the Deportation Rules, he does not need to provide evidence of a very strong Article 8 claim. On the contrary, the appellant can potentially succeed in a freestanding proportionality assessment, even though his Article 8 claim is weaker than the exceptions given in the deportation rules.”
24. The judge went on to consider the facts before him, with reference to s 117B. He concluded that the appellant did not have a sufficiently strong private life claim under article 8(1) to outweigh the pubic interest in his deportation. He thus dismissed the appeal.
25. An application to the First-tier Tribunal for permission to appeal was refused by Upper Tribunal Judge Martin. A renewed application to the Upper Tribunal was refused by Upper Tribunal Judge Keith. The grounds at each level may be summarised as follows. Wilson is wrongly decided in its conclusion that the First-tier Tribunal is concerned only with a public law error in the deportation decision. In deciding Wilson, the Upper Tribunal had failed to appreciate that there was no material difference between Wilson and Charles. As had been argued before the First-tier Tribunal, if the liability for the deportation and the decision to deport is totally undermined since the reasoning is unproved then the presumption [in favour of deportation] is rebutted without more”. The Secretary of State must be taken to mean what she said, that is to say that the appellant’s deportation was conducive to the public good: she was, in essence, not entitled to rely on that view given the Tribunal’s finding that the offence had not caused serious harm. Considerable reliance in Ms Daykin’s grounds is placed on Bah (EO (Turkey) – liability to deport) [2012] UKUT 00196 which, as its date shows, was an appeal which predated either the removal of the right of appeal against the making of a deportation order or the introduction of Part 5A of the 2002 Act. In the second principal ground of appeal, the argument was that the judge erred in attributing any weight to the public interest in the deportation of the appellant. Having reached the finding he had done, he should simply have ignored the appellant’s offences.
26. Permission to appeal having been refused by the Upper Tribunal, the appellant launched a Cart judicial review claim. The application came for permission before HHJ Walden-Smith sitting as a Deputy Judge of the High Court. She granted permission, observing as follows:
“3. … there is an important point of principle in determining whether, once Article 8 is engaged and the basis for the [Secretary of State’s] interference with those Article 8 rights is not made out (as in this case) whether those rights are disproportionately violated by removal without any further requirement to assess the quality of the private life and the extent of the interference.
4. Ground 2 of the application raises a point of principal [sic] with respect to whether the presumption to deport was rebut [sic] once the FTT rejected the [Secretary of State’s] contention that the Claimant had committed an offence which had caused serious harm.”
27. It looks as though, on a necessarily summary assessment, the judge must have concluded that it was arguable that Wilson was wrongly decided (although the judge makes no reference to the reasoning in Wilson). It appears also that the judge thought, perhaps in reliance on the grounds before her, that no presumption of deportation applied. Permission for judicial review having been granted, the decision of the Upper Tribunal refusing permission was set aside, and permission to appeal to this Tribunal was granted, in order for the matter to be fully argued.
28. Thus, Ms Daykin’s argument, that Wilson is wrongly decided and should not be followed, receives a further airing. It must be said at once that the argument presented to us was not that presented to the First-tier Tribunal. As we have indicated, Ms Daykin’s assertion to the First-tier Tribunal was that the result she sought was justified by a proposition she derived from Mahmood. Mahmood played no noticeable part in her submissions to us. The reason for that is, no doubt, because nothing can be found in Mahmood to support the arguments she makes.
29. Instead, she relies chiefly on three previous decisions of the Tribunal, Bah, Chege and Charles. She cites a number of dicta from each of those cases, which appear, when taken out of context, possibly to support what she says. The centrepiece of her position is, of course, that if the decision to make the deportation order was itself unlawful, the interference with the appellant’s article 8 rights by his deportation cannot be justified. She insists, however, that the authorities show that the Tribunal in Wilson was wrong to confine the ascertainment of unlawfulness to public law errors. She submits instead that the Tribunal should investigate for itself the whole of the facts leading up to the decision to make a deportation order; and that if the Tribunal differs from the Secretary of State on either the facts or the assessment of them, the Secretary of State’s decision to make a deportation order is to be treated as unlawful.
30. Her proposition only needs to be stated in that way for it to be clear that there might be some difficulties in establishing it.
31. Ms Daykin’s starting point appears to be that the Tribunal erred in treating Charles as authority for the proposition that there would need to be a public law error in the deportation decision before the Tribunal could investigate or override it. In Wilson, however, the Tribunal did not derive any such proposition from Charles. It noted that in Charles there had been, properly, an investigation of whether the deportation decision was unlawful. In that case illegality was found. The Wilson Tribunal continued as follows:
“72. By the same token, in the present case, the Secretary of State’s decisions that the claimant’s deportation would be conducive to the public good and that a deportation order should be made in respect of him, would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in the human rights appeal. To reiterate, such unlawfulness is not established by the judge’s conclusion for the purposes of Part 5A of the 2002 Act that the individual is not a “foreign criminal” within the meaning of section 117D(2).”
32. That is not treating Charles as authority for the proposition. It is treating Charles as another exemplification of the proposition which follows from the statute.
33. Ms Daykin relies on Bah on the basis that the Tribunal there was “unequivocal in their decision as to the power of the Tribunal to reach its own conclusions as to whether a person is liable to deportation and that the three stages for consideration [as there set out] were necessary if the deportation were challenged on human rights grounds”. That, however, was in a wholly different context. In Bah, the decision under appeal was the decision to make the deportation order. Such a decision was appealable by virtue of the provisions of the 2002 Act as they then stood. Amongst the available grounds of appeal, as set out in s 84 as it then was, were “(e) that the decision is not in accordance with the law;“ and “(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules.” The appellant could also appeal on human rights grounds. The Tribunal undertook to examine the scope of appellate scrutiny of the factual foundation of liability to deportation under the law as it then stood. It concluded that the Tribunal is entitled to consider all the facts of the case, in order to determine whether to allow the appeal against the making of (or the decision to make) the deportation order. It summarised its conclusion specifically in a section headed “Conclusions on the Appellate Jurisdiction in Conducive Appeals”, that is to say in appeals against the deportation decision, as were then available.
34. Ms Daykin would have the law as set out in relation to appeals of that nature in Bah applied, without modification, to the appellant’s appeal in these proceedings. It is, however, inconceivable that when in the Immigration Act 2014 Parliament radically changed the rights of appeal, with reforms including both the abolition of the right of appeal against a deportation decision and the grounds of appeal in the section 84(1)(e) and (f) mentioned above, it intended the existing law on the judicial approach to appeals to remain unchanged. That is precisely the point being made by paragraph [72] of Wilson: there is now no scope for a Tribunal to nullify the deportation decision solely on the basis that it differs from the Secretary of State on whether the decision should have been made.
35. It is perhaps worth pointing out in addition that, in considering whether the Secretary of State’s assessment that the deportation of the appellant in Bah was conducive to the public good, the Tribunal set out the relevant provisions of the Immigration Rules, then contained in paragraph 364, and then said this:
“17. In the present appeal, the substantive issue raised by the appellant is whether the Secretary of State can indeed demonstrate that he is the member of the dangerous gang that he is alleged to be. If she can there would be a powerful case to justify deportation: both in assessing whether deportation is a justified and proportionate interference with the enjoyment of the family and private life of the appellant and (once the human rights claim has been considered) whether there is any reason to depart as a matter of general discretion from the presumption under the current version of the Immigration Rules.
18. If, on the other hand, this allegation cannot be substantiated then the case for deportation is significantly weakened and indeed the factual basis for the Secretary of State’s conclusion that the appellant was liable to deportation and therefore should be deported would be substantially undermined.”
36. In the light of Ms Daykin’s submissions, it is particularly noticeable that even the Tribunal in Bah does not suggest that in those circumstances the decision of the Secretary of State would be unlawful, for the purposes of article 8, or for any other purposes. It would, under the then appellate regime, simply have been one of the factors to take into account in deciding whether the deportation decision should be reversed on appeal.
37. For these reasons, it is simply not right to say that the Tribunal’s decision in Bah supports Ms Daykin’s assertion that the decision in Wilson is wrong in confining the investigation of the underlying deportation decision to the question whether the latter was unlawful. The phrase “in a public law sense” or other synonymous phrases add no further restriction to this sentiment: they simply serve to emphasise that what is necessary is a finding of unlawfulness, not a finding of difference of opinion or assessment.
38. The failure to appreciate that distinction lies also behind Ms Daykin’s reliance on Charles, which in her written skeleton she asserts was not materially different to Wilson. The true position is that Charles was materially different from Wilson. As we have indicated, in Charles, the Tribunal’s assessment of the facts and the relevant law led it to the conclusion that the appellant was protected by s 7 of the 1971 Act from deportation. He could not be deported. In Wilson, as in the present case, the appellant was not protected from deportation. Instead of being, like Charles, a person who could not be deported, he was a person who, in appropriate circumstances, could be deported.
39. The crucial mistake here is the attempt to elide objective considerations and subjective considerations. The consideration under s 7 is objective. The determination of the relevant facts and the application of the “hard-edged” rules of s 7 to the relevant facts are of universal effect. Once it has been decided judicially that the appellant is protected by s 7, nobody is entitled to decide that the appellant should be deported. Not only is he not liable to deportation: he could not be liable to deportation. The consideration under s 3(5), in cases where s 7 does not apply, is, by contrast, subjective. It is limited to consideration by a single individual – the Secretary of State (or somebody acting on her behalf). However many other individuals or institutions may take a different view on the facts, or their consequences, or their relative weight, the Secretary of State is entitled to reach the view that the deportation of the individual is conducive to the public good: provided only that that view is one properly open to her on the material before her at the time she reached the decision. No absolute conclusion can follow from an examination of the law and the facts (as it can under s 7): there is also an assessment to be made.
40. Where there is an assessment to be made by (and only by) the Secretary of State, the Tribunal will need to ascertain whether that assessment has been made, and whether it has been made lawfully. Those are matters that fall to be taken into account in the Tribunal’s own decision. The Tribunal’s role in reaching its own view on what may be an identical, or near-identical question, whether reached on the same, or on different, material, does not mean that the Tribunal overrides the executive assessment, where the Tribunal is required to assess something which the Secretary of State has previously been required to assess, any difference in assessment will be a matter for the Tribunal to take into account, but, to repeat, the difference does not demonstrate illegality in the Secretary of State’s earlier assessment.
41. We therefore reject the appellant’s contention, as it is expressed in Ms Daykin’s written skeleton argument, that:
“There are two ways of looking at the alleged facts, either that the appellant was convicted of offences, which was accepted, or the appellant was convicted of offences that caused serious harm, which was rejected. The appellant contends that the liability decision and the deportation decision was founded on the basis of the latter construction and as such, once that conclusion was reached the anterior decision was unlawful and provides a complete answer to article 8 appeal as in Charles.”
42. The decision having the effect that the appellant was liable to deportation, and the deportation decision itself, were both founded on the Secretary of State’s assessment under the Immigration Rules, not on the Tribunal’s assessment under s 117C. Those two assessments can properly stand side by side, different, but both lawful, unless there is some reason to suppose that either of them is unlawful as distinct from merely different. In the present case there is not a shadow of reason for supposing that the Secretary of State was not entitled to reach the conclusion that she did, that is to say that the appellant had been convicted of an offence which had caused serious harm, and that his deportation would be conducive to the public good. It follows that the judge was right to reason as he did. He reached his own conclusion on whether the appellant had been convicted of an offence which caused serious harm, and he applied that conclusion to his assessment of the proportionality of the appellant’s removal. He was right to recognise that his conclusion did not render the deportation decision unlawful. He was right to follow Wilson, the correctness of which we affirm: Ms Daykin’s submissions do not begin to cast any doubt on it.
43. The judge then needed to determine whether the decision to deport the appellant was unlawful as a disproportionate interference with his rights under article 8. Ms Daykin objects to the judge’s assessment of proportionality on the following basis, again as set out in her written skeleton argument:
“42. As per paragraph 396 of the Immigration Rules, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Respondent contended that deportation was in the public interest because the Appellant had committed an offence that caused serious harm. That was rejected by the FTTJ. In the absence of any other reasons advanced by the Respondent, the presumption in this case should have been considered to have been rebutted.
43. Although the FTTJ states that significant weight was attached to the fact that serious harm was not proved, contrary to the case advanced by the Respondent [65] it does not appear to be the case when at [66] the FTTJ finds that the public interest is not thereby significantly eroded.”
44. Having determined that s 117C did not apply (because his assessment was that the offence did not cause serious harm), the judge took into account all the relevant facts, and applied s 117B, as he was bound to do. Amongst those facts were a number of matters relating to the appellant’s offending. Having looked in some detail at the material before him, he concluded at [64] that although he did not find that there was a significant risk of reoffending, he was unable to find that the appellant presents as reformed and rehabilitated. He continued as follows:
“65. I considered that it would be unduly harsh to treat the appellant as not being integrated at all into UK society on account of his offending, when he was a previous good character and there is no evidence of any criminality beyond that which was uncovered by the police after conducting a search of the appellant’s premises and vehicle. I also [attach] significant weight to the fact that the appellant did not commit a crime which actually caused serious harm, contrary to the case advanced in the [reasons for refusal letter].
66. However, I am unable to accept that the public interest in his deportation is thereby significantly eroded. There are two key facets of the public interest which are in play, namely deterrence and maintaining public confidence in the treatment of foreign criminals who commit serious crimes. Although the appellant did not receive a term of imprisonment of one year so as to trigger automatic deportation, he nonetheless received a significant term for imprisonment that reflected the seriousness of his offending.”
45. It does not appear to us that Ms Daykin’s arguments undermined those conclusions at all. The appellant was “liable to deportation”, because the Secretary of State (whose assessment alone is capable of determining the matter) had determined that his deportation was conducive to the public good. Paragraph 396 of the Immigration Rules applies: “the presumption shall be that the public interest requires deportation”. We do not see anything in any of the material to which Ms Daykin referred to suggest that a person’s proved criminality is to be ignored when assessing the proportionality of his removal. The judge considered the presumption which applied despite his own assessment of the effect of the appellant’s offending, and considered with great care the extent to which the appellant’s own circumstances outweighed or displaced it. That is precisely the exercise which he should have undertaken, and his conclusion is in our judgment unassailable.
46. The availability of the Cart challenge in this case, and the decision made on that challenge, have simply extended the length and expense of the appellant’s appeal. We draw attention to the remarks we made in PB (“Cart” judicial reviews: “new” grounds”) Sri Lanka [2022] UKUT 154 (IAC). and to the prospective abolition of that jurisdiction by s 2 of the Judicial Review and Courts Act 2022. In the present case it is clear to us that the judges of the First-tier Tribunal and of this Tribunal who refused permission to appeal on the ground that there was no arguable error of law in the First-tier Tribunal Judge’s decision were correct beyond any reasonable dispute. For our part, our decision is that Judge Monson made no error of law in deciding the appeal as he did.

C.M.G. Ockelton

C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 8 June 2022