Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/44023/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th November, 2016
On 14th December, 2016

Before

Upper Tribunal Judge Chalkley

Between

THE Secretary of State FOR THE Home Department
Appellant
and

SA
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr S Staunton, a Home Office Presenting Officer
For the Respondent: Ms E Saunders of Counsel

DECISION AND REASONS
1. The appellant in this appeal is the Secretary of State for the Home Department who I shall refer to as being, "the claimant".
2. The respondent, SA, is male, a citizen of Turkey and was born on 9th September, 1975.
3. The respondent arrived in the United Kingdom on 15th May, 1993 to join his mother who had arrived in the United Kingdom earlier and claimed asylum. Her claim for asylum was subsequently refused, but she was granted exceptional leave to remain until 23rd April, 1994. On 14th June, 1993, the respondent was granted exceptional leave to remain in line with his mother. The respondent and his mother were subsequently granted indefinite leave to remain in April, 2001.
4. On 9th July, 2004 the respondent was convicted of importing class A drugs (heroin) and sentenced to fifteen years' imprisonment. He became liable to automatic deportation. On 27th October, 2011 the respondent was served with a reasons for deportation letter and a signed deportation order. The respondent appealed, claiming that he fell within one of the exceptions to automatic deportation and his appeal was allowed by the First-tier Tribunal under Article 3 grounds in a determination promulgated on 16th March, 2012.
5. The claimant sought application for leave to appeal that decision to the Upper Tribunal, but it was subsequently refused.
6. On 17th March, 2014 the respondent was served with a notice of intention to revoke his indefinite leave to remain. The respondent had provided representations as to why his indefinite leave to remain ought not to be revoked. Thereafter, the claimant decided to revoke the respondent's indefinite leave to remain, in a letter dated 14th October, 2014.
7. The claimant accepted that the respondent's appeal against deportation was allowed on human rights grounds and that he cannot be removed from the United Kingdom. However it was decided to revoke his indefinite leave to remain, in view of the fact that Section 76(1) Nationality, Immigration and Asylum Act 2002 applied to the appellant.
8. The respondent appealed and his appeal came before First-tier Tribunal Judge Ross at Hendon Magistrates' Court on 11th February, 2016. Judge Ross considered two authorities relied on on behalf of the Secretary of State. These were Ali (s.76 - "liable to deportation") Pakistan [2011] UKUT 250 (IAC) and R (on the application of Fitzroy George) (Respondent) v Secretary of State for the Home Department (Applicant) [2014] UKSC 28.
9. The judge concluded that the respondent's appeal had to be allowed for reasons which were not raised by either party. He concluded that the essential issue was whether the Secretary of State was entitled to revoke the indefinite leave to remain under Section 76(1) of the 2002 Act. Having examined the case law, he found that the case of Ali establishes that a person who is subject to automatic deportation can only become a person whose leave may be revoked under Section 76(1), if the Secretary of State has deemed his deportation to be conducive to the public good.
10. Subsequently, in R (on the application of George), the Supreme Court decided a different issue, namely whether the revocation of a deportation order revives a person's indefinite leave to remain, or whether the Secretary of State is at that stage free to consider afresh what leave should be granted. In the case of George, he was a person whose deportation had been judged by the Secretary of State to be conducive to the public good. The judge referred to and quoted paragraph 13 of the Secretary of State's reasons letter of 14th October, 2014 and the judge noted that while the matters set out in that paragraph were correct, the notice and the reasons for revocation were problematical, because the Secretary of State had not herself (or by a decision maker) deemed that the respondent's deportation was conducive to the public good. Consequently, he found that the decision of the Secretary of State was not in accordance with the law and allowed the respondent's appeal.
11. The grounds of appeal suggest that the judge erred by failing to distinguish between the current case and that of Ali; the respondent being a foreign criminal within the meaning of Section 32 and Section 32(5) requiring the Secretary of State to make a deportation order. The exception in 33(2) applies to the respondent. In Ali the Secretary of State having found the subject of that appeal to have been liable to deportation had not pursued deportation and therefore as accepted by the Presenting Officer in that case the Secretary of State had reached no such conclusion as to whether or not deportation was conducive to the public good. In the present case, it was the appellant's European Convention rights which prevented his removal.
12. The Presenting Officer accepted that the Secretary of State had not made a decision that the respondent's deportation was conducive to the public good. For the respondent, Ms Sanders submitted that there was no distinction between the case of Ali and this case. Here, deportation was automatic under Section 32 of the UK Borders Act 2007. In MK (deportation - foreign criminal - public interest) Gambia; Secretary of State for the Home Department v MK [2010] UKUT 281 (IAC) the Upper Tribunal held that in the automatic deportation context the Secretary of State's discretion had been replaced by parliament's decision as to the public good. In Ali the Upper Tribunal found that the definition of "liability to deportation" is the same as under Section 76 of the Nationality, Immigration and Asylum Act 2002 and that the effect of the set of exemptions contained in Sections 32 and 33 of the UK Borders Act 2007 is that where a person caught by the automatic deportation provisions cannot be deported due to his or her human rights, parliament still considers his or her deportation to be "conducive to the public good".
13. The taking by the Secretary of State of her own decision as to the public good, is a "crucial requirement" before Section 76 can take effect. At paragraph 23 the Tribunal said:-
"Liability to deportation under Section 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 Section 32(4) of the UK Borders Act 2007 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 decision. But, as we see it, under Section 3(5)(a) of the Immigration Act 1971, 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".
14. Mr Ali was not "liable to deportation" because the Secretary of State made no such decision that she deemed his deportation to be conducive to the public good. The decision of the Supreme Court in George involved a decision made under the Immigration Act 1971, rather than under the new automatic deportation regime.
15. It was submitted on behalf of the claimant that there was no effective difference for the purposes of the effect of the relevant statutory provisions between the situations in Ali and in the present case. It made no difference that in Ali the Secretary of State had reached the conclusion that she should not make a deportation order due to Mr Ali's Article 8 rights, whereas in the instant case the respondent had to take his case to the First-tier Tribunal for a ruling that his deportation would breach Article 3. In both cases, the underlying decision that deportation would be conducive to the public interest was made by parliament, not by the Secretary of State and parliament's decision is not displaced by either the decision of the Secretary of State that an individual's deportation would breach his or her human rights, or by the decision of the Tribunal that an individual's deportation would breach his or her human rights.
16. The clear effect of Section 33(7) UK Borders Act is that the human rights exception under Section 33(2) does not displace parliament's view of the public interest under Section 32(4), and the effect of Ali must be that in both situations where a decision by the Secretary of State that an individual's deportation would breach his or her human rights, and the decision by a Tribunal that an individual's deportation would breach his or her human rights, the Secretary of State must explicitly decide that the deportation would be conducive to public interest, before reliance can be placed on Section 76. The effect of Ali is to require the appellant to make her own explicit decision that an individual's deportation is conducive to the public good in every case in which she seeks to revoke an individual's indefinite leave to remain under Section 76 of the Nationality, Immigration and Asylum Act 2002. It is not possible to imply such a decision into the making of an automatic deportation order. Section 117C of the 2002 Act is simply an expression of parliament's view of the public interest, and has no bearing on the obligation which parliament has placed on the Secretary of State under Section 3(5) of the 1971 Act.
17. Counsel also drew attention to the fact that the appellant's own policy instruction requires her to explicitly notify individuals that she considers their deportation to be conducive to the public good before she can apply Section 76 to them. (See Revocation of Indefinite Leave Version 4.0, 19th October, 2005).
18. I have concluded, therefore, that the decision of the judge did not involve the making of an error of law and the decision shall stand.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Richard Chalkley
A judge of the Upper Tribunal

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and I have considered making a fee award and have decided to make a fee award of any fee which has been paid or may be payable (adjusted where full award not justified) for the following reason. The decision of the Secretary of State for the Home Department was wrong.

Richard Chalkley
A judge of the Upper Tribunal.