Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/11075/2015

THE IMMIGRATION ACTS

Heard in Manchester
Determination & Reasons Promulgated
On 30 March 2017
On 25 April 2017

Before

UPPER TRIBUNAL JUDGE SMITH

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR JAVIR ANDRE HULL
Respondent

Representation:
For the Appellant: Mr G Harrison, Senior Home Office Presenting Officer
For the Respondent: Ms L Mair, Counsel, instructed by Greater Manchester Immigration Aid Unit

Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
No anonymity order was made by the First-tier Tribunal. There is no good reason to make an anonymity direction in this case.

DECISION AND REASONS

Background
1. This is an appeal by the Secretary of State. For ease of reference, I refer below to the parties as they were in the First-Tier Tribunal albeit that the Secretary of State is technically the Appellant in this particular appeal. The Respondent appeals against a decision of First-Tier Tribunal Judge McAll promulgated on 1 December 2015 (“the Decision”) allowing the Appellant’s appeal against the Secretary of State’s decision dated 25 January 2015 to refuse him further leave to remain and making a deportation order against him.

2. Permission to appeal was granted by Upper Tribunal Judge Storey on 2 September 2016 in the following terms:-

“…[3] It is clearly arguable that the judge erred in failing to apply the Immigration Rules on foreign criminals to the appellant’s case and also in failing to treat those Rules as a complete code; in failing to treat the (undisclosed) commission of a further offence at the appeal hearing before last as fresh evidence, or as weighty significant evidence (especially given the finding that the appellant was not a credible witness and continually sought to downplay his involvement in his offending behaviour); in dealing superficially and minimalistically with the public interest; and in failing to provide adequate reasons for considering return to Jamaica would have disproportionate consequences for the appellant.”

The matter comes before me to determine whether the Decision contains a material error of law and if I so find, either to re-make the decision or remit the appeal for re-determination by the First-tier Tribunal.
3. The Appellant is a national of Jamaica now aged twenty-four years. He entered the UK on 26 July 1999 on a valid visa to visit his mother who was then a student in the UK. He was then aged seven years. He overstayed but was then granted discretionary leave in 2004 which was renewed until 2010. In March 2010, the Appellant committed an offence of violent disorder (then aged seventeen years) and was sentenced to eighteen months youth detention in January 2011.
4. Based on the Appellant’s criminal offence, the Respondent made a deportation order against him under the power in section 32(5) UK Borders Act 2007 (“section 32”). The Appellant’s appeal against that deportation order was allowed and the Respondent was refused leave to appeal. The Appellant then applied for further discretionary leave on 13 April 2013 which was granted to 12 October 2013. His application for further discretionary leave led to the Respondent’s decision under appeal and the further decision to deport to which I have already alluded.
5. Other than the criminal offence which led to the making of the original deportation order overturned on appeal, the Appellant has committed one further offence. In relation to that offence committed on 25 April 2012, the Appellant was initially charged with burglary (to which he pleaded not guilty) but pleaded guilty to and was convicted of a charge of being found on enclosed premises for an unlawful purpose. He received a Community Order with a fifty hours unpaid work requirement for that offence. It is worth noting that this conviction and sentence pre-dates the grant of discretionary leave by the Respondent in April 2013.

Grounds and submissions

6. In the first of her grounds, the Respondent relies upon paragraph 399C of the Immigration Rules which states as follows:
“Where a foreign criminal who has previously been granted a period of limited leave under this Part applies for further limited leave or indefinite leave to remain his deportation remains conducive to the public good and in the public interest notwithstanding the previous grant of leave.”

7. It appears from the remainder of that ground as pleaded though that the Respondent recognises that this cannot mean that she can simply ignore a previous determination of the Tribunal as to the proportionality of deportation since she notes the Court’s judgment in SSHD v TB (Jamaica) [2008] EWCA Civ 977. In that regard, however, she asserts that she is entitled when making a further decision to deport to take into account fresh evidence not available at the date of the hearing. She appears to rely as being fresh evidence on the commission of the other criminal offence to which I have referred at [5] above. As the grounds note, and as referred to at [24] of the Decision, that offence was committed two days before the appeal hearing which led to the first allowed appeal but the Appellant did not disclose it to the panel.

8. I asked Mr Harrison to explain why the Respondent relied on this later offence as being new evidence in circumstances where she herself had granted the Appellant leave after the commission of that offence and indeed after he had been convicted of it. Mr Harrison submitted that this may have been a mistake by the Respondent although it is also worth noting that he accepted in answer to a question from me that the decision whether further leave should be granted would have remained with the Criminal Casework Directorate and it was that department which had later decided to make a further deportation order.

9. The second ground relies on what is said by the Court of Appeal in Danso v SSHD [2015] EWCA Civ 596 concerning the dual nature of the public interest in deportation which includes not only protection of the public against further harm but also a deterrence to others from committing an offence. Relying on that authority, the Respondent submits that the Judge failed adequately to consider whether there was a public interest in deportation notwithstanding the lack of further offending. Under this head, the Respondent also criticises the Decision on the basis that the Judge has failed to properly assess the seriousness and impact of the offending, has failed to take account of the Appellant’s downplaying of his involvement and has failed properly to balance the impact of deportation on the Appellant and his family against the public interest.

10. Ground three concerns the Judge’s consideration of the Appellant’s Article 8 claim outside the Rules. The Respondent submits that since the Immigration Rules in relation to deportation of foreign criminals are a “complete code”, the Judge provided no reasons for considering the position outside the Rules.

11. The fourth of the Respondent’s grounds challenges the Judge’s failure to take into account section 117 Nationality, Immigration and Asylum Act 2002 (“section 117”) when assessing the Appellant’s rights against the public interest.

12. In his oral submissions, Mr Harrison readily admitted that the public interest justification for the Appellant’s deportation remains the original offending. What appears to underpin the Respondent’s decision to deport is that the legal position has been changed by the introduction into the Immigration Rules and now into primary legislation of the Respondent’s statement as to where the public interest lies and that this alters the legal landscape when considering a previous appeal determination. Mr Harrison accepted (as he was bound to do) that, were it not for the previous offending, the Appellant would not fall into the definition of “foreign criminal” in section 117D at all as the Appellant was not given a custodial sentence for the later offence.

13. In reality, the Respondent’s position is not that what has changed since the previous appeal is the commission of a further offence but that there has been a change in approach to where the public interest lies. Mr Harrison was constrained to accept though that this is a difficult argument in light of what is said by the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 (“HA (Iraq)”) about the purpose behind the 2012 Rules change.

14. In response, Ms Mair pointed out that the central ground is ground one. If the Respondent is not entitled to go behind the decision of the Tribunal in the first appeal which was determined in the Appellant’s favour, grounds two to four are then immaterial as the Judge in this appeal had to take as a starting point the findings in the first appeal.

15. The Appellant’s starting point therefore is that the deportation order made on this occasion is “not in accordance with the law” as the Judge found at [17] of the Decision. Ms Mair accepted that, since this is an appeal relating to the making of a deportation order, it is one which falls within the new appeals regime in the Immigration Act 2014 and as such the Appellant could appeal only on protection and human rights grounds. However, the question whether the deportation order is in accordance with the law is relevant to the public interest in relation to the human rights grounds.

16. Ms Mair also submitted that the underlying statutory regime was not changed by the changes to paragraphs 398 and 399 in 2012 or the implementation of the Immigration Act 2014. The power to deport arises from the Appellant’s original offending and under UK Borders Act 2007. In effect, what the Respondent seeks to do is retrospectively to apply the 2012 Rules and section 117 to the decision made to deport the Appellant for his original offence in 2011. That is legally impermissible. She relied in that regard on the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] UKHL 25.
17. Ms Mair noted that the Judge has considered the arguments on both sides, has taken as his starting point the earlier determination (per Devaseelan (Second Appeals – ECHR – Extra-Territorial Effect) Sri Lanka* [2002] UKIAT 00702 (“Devaseelan”) and has considered in that context whether the Respondent is entitled to rely on the earlier offending to deport the Appellant now notwithstanding the earlier determination. The Judge was clearly aware of the further offence but that was a minor one. She submitted therefore that ground one fails.

18. In case I were persuaded that ground one succeeded, Ms Mair also addressed me on grounds two to four. She submitted that those grounds were merely a disagreement and/or submissions made on the evidence which had not been made by the Respondent at first instance. Paragraph [25] of the Decision is the Judge’s conclusion as to why what had occurred since the first appeal determination did not alter the outcome. Paragraphs [26] onwards set out the Judge’s reasoning for reaching that conclusion. As to ground three, the Judge explained at [19] of the Decision why he considered the case outside the Rules.

Discussion and conclusions

19. The key paragraph of the Decision in relation to ground one is at [17] where the Judge finds as follows:-

“Sections 32 and 35 UK Borders Act 2007 are the provisions dealing with foreign criminals and the requirement imposed upon the Secretary of State to make a Deportation Order once certain criteria are met. The Appellant met the requirement of those provisions when he was sentenced to 18 months detention which is why a decision was taken in 2011 to deport him and that decision was successfully appealed in 2012. The Appellant does not satisfy conditions 1 or 2 in section 32(2) and (3) in respect of the 2012 offence of being found on enclosed premises for an unlawful purpose. The Respondent clearly relies in the refusal letter on the Violent Disorder offence triggering the making of the deportation decision and the deportation order. I find that approach is not in accordance with the law and is unfair as that offence has already been the subject of a decision and judicial scrutiny. In the absence of a clear intention specified by Parliament in the UK Borders Act 2007 I find it would be wrong for an offence that in itself does not meet the conditions 1 and 2 referred to in section 32(2) and (3), which is committed following the “trigger” offence, should then place the Appellant in jeopardy again. If Parliament had intended that “any” further offences by an Appellant after a successful section 32 deportation appeal would trigger a further decision then it would have specified that in the Act.”

20. It is right to observe that paragraph 399C provides that deportation remains conducive and in the public interest notwithstanding the grant of leave subsequently. However, it is also right to observe, as the Supreme Court did in HA (Iraq) that section 33(7) UK Borders Act 2007 also provides that section 32(4) applies (i.e. that deportation remains conducive) even where exception 1 applies (that is to say that deportation breaches the deportee’s human rights). However, neither provision specifies that those provisions are intended to apply to permit the Respondent to make a deportation order based on the earlier offending of a foreign criminal for a second time when deportation has been found to be disproportionate in a first appeal. That is the point being made by the Judge at [17] of the Decision. For the principles which apply in that situation, it is appropriate to look to the Court of Appeal’s decision in TB (Jamaica) and the Tribunal’s decision in Devaseelan.

21. The principles derived from Devaseelan in terms of second appeals are well-known. They differ however somewhat from the situation in this case. The Tribunal was there concerned with the impact of earlier factual findings on a later appeal. The position may not be precisely the same when considering human rights because what the Tribunal or Court is then considering (when looking at Article 8 at least) is a balance of the rights of the individual against the public interest as at the date of the hearing. The rights of the individual may have strengthened in the interim favouring the Appellant or the public interest in favour of removal may have strengthened due to the Appellant’s behaviour in the interim.

22. That does not mean though that the earlier Tribunal’s determination can simply be left out of account. The case of TB (Jamaica) is perhaps closer to the principles which apply in this situation. In that case, TB had a deportation order made against him and had succeeded on appeal on both protection and human rights grounds. Following the appeal, the Secretary of State, without appealing the Tribunal’s decision, sought to exclude TB from the Refugee Convention and to refuse him leave to remain on that basis. The Court of Appeal in dismissing the Secretary of State’s appeal against the first instance judgment that it was unlawful for her to do so said the following:-

“[32] As a matter of principle, it cannot be right for the Home Secretary to be able to circumvent the decision of the IAT by administrative decision. If she could do so, the statutory appeal system would be undermined; indeed, in a case such as the present, the decision of the Immigration Judge on the application of the Refugee Convention would be made irrelevant. That would be inconsistent with the statutory scheme.

[33] The principle that the decision of the Tribunal is binding on the parties, and in particular on the Home Secretary, has been consistently upheld by the Courts. In R (Mersin) v Home Secretary [2000] EWHC Admin 348, Elias J said:

“In my opinion there is a clear duty on the Secretary of State to give effect to the Special Adjudicator's decision. Even if he can refuse to do so in the event of changed circumstances or because there is another country to which the applicant can be sent, there is still a duty unless and until that situation arises. It would wholly undermine the rule of law if he could simply ignore the ruling of the Special Adjudicator without appealing it, and indeed Mr. Catchpole [counsel for the Home Secretary] does not suggest that he can. Nor in my opinion could he deliberately delay giving effect to the ruling in the hope that something might turn up to justify not implementing it. In my judgment, once the adjudicator had determined the application in the applicant's favour, the applicant had a right to be granted refugee status, at least unless and until there was a change in the position.

[34] In R (Boafo) v Home Secretary [2002] EWCA Civ, [2002] 1 WLR 44, Auld LJ said at [26] in a judgment with which the other members of the Court of Appeal agreed, “… an unappealed decision of an adjudicator is binding on the parties.” In R (Saribal) v Home Secretary [2002] EWHC 1542 (Admin), [2002] INLR 596, Moses J said:

“17. The decision in ex parte Boafo demonstrates an important principle at the heart of these proceedings. The Secretary of State is not entitled to disregard the determination of the IAT and refuse a claimant’s right to indefinite leave to remain as a refugee unless he can set aside that determination by appropriate procedure founded on appropriate evidence.”

[35] Of course, different considerations may apply where there is relevant fresh evidence that was not available at the date of the hearing, or a change in the law, and the principle has no application where there is a change in circumstances or there are new events after the date of the decision: see Auld LJ in Boafo at [28]. But this is not such a case.”

23. Insofar as the Respondent seeks to rely on the further offence as being fresh evidence in accordance with [35] of TB (Jamaica) I did not understand Mr Harrison to support that position. He was right not to do so. This is not a case where there was further offending which was an escalation of previous offending. It was a further offence and therefore relevant as a consideration whether to depart from the previous decision of the Tribunal. However, as Ms Mair submitted and I accept, that offence was not sufficiently serious to come anywhere close to the criteria for deportation on its own.

24. Mr Harrison’s submission appeared rather more to rely on what is said at [35] of TB (Jamaica) as to a change in the law in reliance on there having been a change in the legal landscape brought about by the changes to the Immigration Rules in 2012 and by section 117. The Respondent’s position in that regard is that her statements in the Immigration Rules and now primary legislation as to where the public interest lies amount to a change in the weight to be given to the public interest. I cannot accept that submission for three reasons.

25. First, if the Respondent were right in that submission, it would be open to her to reopen all past deportation appeals with which she disagreed even if there had been no changes at all in the factual position in those cases. Without some clearly stated intention from Parliament that this should be the position, I do not accept this proposition.

26. Second, the earlier deportation order in this case was made under the provisions of section 32 UK Borders Act 2007. That Act itself makes clear that deportation of foreign criminals is considered to be in the public interest and that there is (and continues to be) a presumption in favour of deportation of foreign criminals (even where one of the exceptions applies). The public interest in deportation set out in the Rules and in section 117C is to the same effect.

27. Third, although the Supreme Court did not address the impact of section 117C in the case of HA (Iraq), the judgment is concerned with the effect of the changes to the Rules in deportation cases. As the Supreme Court noted at [71] of the judgment, the purpose of the Rules (and now section 117C) is as follows (citing from the Secretary of State’s Statement of Intent):-

“[38] The new Immigration Rules are intended to fill this public policy vacuum by setting out the Secretary of State’s position on proportionality and to meet the democratic deficit by seeking Parliament’s agreement to her policy. The rules will state how the balance should be struck between the public interest and individual rights, taking into account relevant case law, and thereby provide for a consistent and fair decision-making process.”

What that Statement of Intent does not say is that the Secretary of State’s view as to what the public interest requires has altered over time. The inclusion in the Rules and now primary legislation of guidance as to how the balance is to be struck therefore can be assumed to be what the Secretary of State has always considered the position to be.

28. As the Supreme Court observed in HA (Iraq) , the underlying principles when assessing the proportionality of deportation are set out in a series of judgments of the Strasbourg Court (see [26] of the judgment). It is to be assumed therefore that when stating her intent as to the balance between individual rights and the public interest, the Secretary of State is referring, inter alia, to that case law. Whilst it is right to observe that one does not find, in the decision of the earlier Tribunal, the sort of language with which Tribunals and Courts are now familiar when considering individual rights against the public interest, such as whether deportation would have an “unduly harsh” effect on the partner or children, or whether there would be “very significant obstacles” to the Appellant’s reintegration in Jamaica, the panel expressly referred to cases such as Maslov from the Strasbourg Court and said that it was applying with that case law. If the Secretary of State’s view was that the panel had failed properly to apply that case law, her remedy was to appeal the decision. She sought to do that but failed. It is not open to her to circumvent that decision by simply making another deportation order in the absence of further factual changes.

29. In terms of the way in which the Judge dealt with this issue, having taken as his starting point the earlier Tribunal’s determination as he was entitled to do ([21] of the Decision) and having dealt with the Appellant’s further offending at [22] to [24] of the Decision, the Judge was entitled to reach the conclusion which he did at [25] that:-

“Taking all of the evidence in the round I do find that the commission of the 2012 offence would not have changed the outcome of the appeal before IJ De Haney and his colleague.”

30. For those reasons, I am satisfied that there is no error of law in relation to ground one.

31. I agree with Ms Mair’s submission that if the Respondent fails on ground one she cannot succeed on the remaining grounds. In case I am wrong about that though, I deal shortly with those grounds.

32. Ground three is now unsustainable in light of the conclusion of the Supreme Court in HA (Iraq) that the Rules are not a “complete code” (see [53] of the judgment). In any event, I agree with Ms Mair that the Judge has explained at [19] of the Decision why he took the route of considering Article 8 outside the Rules. That route was open to him. There is no error of law in that regard.

33. Ground two is to the effect that the Judge has failed to give adequate weight to the public interest, has ignored elements of that public interest and/or that his conclusion was perverse or insufficiently reasoned as to why deportation was not proportionate, bearing in mind findings made about the Appellant downplaying his offending and the risk to the public.

34. I accept that the Judge has dealt with the overall public interest in deportation relatively briefly at [31] to [33] of the Decision and there are elements of the reasoning in that section which do not favour the Appellant. However, that section has to be looked at in the context of the overall Decision which includes at [21] that the background is the decision of the earlier appeal finding deportation to be disproportionate. This was not a case where the Appellant’s Article 8 rights had changed to any perceptible degree. If anything, the passage of time and the continued relationship with his partner and child had strengthened those rights. The Judge was therefore considering the public interest against the background that the risk of reoffending and other issues such as deterrence had already been considered by the earlier panel. That was the reason for the Judge looking at whether the further offence of which the earlier panel was ignorant served to strengthen the public interest in deportation. For reasons given at [22] to [24] of the Decision, the Judge found at [25], that it did not.

35. Ground four similarly ignores that the Judge was entitled to take as his starting point the earlier decision; indeed he was directed to do so by what is said at Devaseelan. As such, the issue which the Respondent says in ground four was not properly taken into account ie section 117C, was not relevant because the issue whether deportation was proportionate in the context of that earlier offending had already been assessed and determined. I agree with Ms Mair’s submission that what the Respondent seeks to do is to retrospectively apply the new Rules and section 117C to an issue which arose in 2011 and was determined at that point in time.

36. For the above reasons, the Decision does not disclose an error of law and I uphold the First-tier Tribunal’s decision. I therefore uphold the Decision.

DECISION
The First-tier Tribunal Decision did not involve the making of an error on a point of law. I therefore uphold the Decision of First-tier Tribunal Judge McAll promulgated on 1 December 2015 with the consequence that the Appellant’s (Mr Hull’s) appeal remains allowed.

Signed Dated: 24 April 2017

Upper Tribunal Judge Smith