Successful Appeal Against - Refusal to Revoke a Deportation Order Against a Foreign Criminal
IT (Jamaica) v SSHD  EWCA Civ 932 (02 September 2016)
Issue: Weight to be Given to the Public Interest in an Appeal Against a Refusal to Revoke a Deportation Order Against a Foreign Criminal
1. This appeal from the Upper Tribunal's determination dated 12 January 2015, dismissing an appeal from the determination of the First-tier Tribunal ("FTT") dated 5 September 2014, raises the question of the weight to be given to the public interest when a deportee applies for revocation of a deportation order made against him. On it depends the further question of what the deportee must show to displace that public interest and in turn what he must demonstrate to a tribunal to succeed on any appeal from the Secretary of State's refusal to revoke that order.
2. In this case, the appellant, A, was deported under section 32 of the UK Borders Act 2007 ("the Borders Act") in 2010 following his conviction for a serious criminal offence for which he was sentenced to 42 months' imprisonment. The Secretary of State has refused to revoke that order so that he can return to the UK to live with his wife and son. The FTT allowed A's appeal and the Upper Tribunal dismissed a further appeal. It is effectively common ground that, under section 117C of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"), the deportation order may only be revoked if its retention is determined to be "unduly harsh", but there is a dispute between the parties as to the weight to be given in that determination to the public interest in deporting foreign criminals who have committed serious offences and to whether the tribunals followed the right approach in this case.
3. For the reasons given below, in my judgment, the undue harshness standard in section 117C of the 2002 Act means that the deportee must demonstrate that there are very compelling reasons for revoking the deportation order before it has run its course. Section 117C is to be read in the context of the Immigration Rules which make that clear. The tribunals in this case recognised the role of the public interest but fell into error because they did not direct themselves as to the weight to be given to it in balancing it against the interests of the applicant and others.
49. I now state my conclusions on this aspect of the case. The relevant question is whether the continuation of the deportation order is unduly harsh, and whether very compelling reasons have to be shown to establish undue harshness.
50. I have reached the same conclusion as Underhill LJ did in relation to the provisions under which he considered that very compelling reasons have to be shown and I reach that conclusion by the following process.
51 As this Court held in MM (Uganda), to answer that question, the public interest must be brought into account. Therefore, the court must know what that public interest is in any particular circumstance in order to give appropriate weight to it.
52.The function of section 117C is to set out the weight to be given to the public interest to be taken into account in the proportionality exercise to be carried out under Article 8 of the Convention in the case of a foreign criminal. Section 117C(1) states that the deportation of foreign criminals is in the public interest. In this context, and indeed in the other uses of the word "deportation" in this section, the word "deportation" is being used to convey not just the act of removing someone from the jurisdiction but also the maintaining of the banishment for a given period of time: if this were not so, section 117C(1) would achieve little.
53. To understand the length of the deportation in any particular case, the tribunal hearing the case has to examine the Immigration Rules. From that the tribunal is bound to observe that those Rules proceed on the basis that, in the absence of undue harshness, the appropriate period of absence from this jurisdiction in a case such as A's is ten years (paragraph 391 of the Immigration Rules). That is a very long period in anyone's life and so it is an indicator of the gravity of the effect on the community which the offence is considered to have. That is the period for which the deportee is expected to be removed from the jurisdiction. As has been said before, removal from the jurisdiction inevitably entails separation from people and places previously enjoyed here, and the pain, inconvenience and hardship which that separation entails.
54. Moreover, it is clear from section 117C (2) that the nature of the offending is also to be taken into account. The tribunal will have access to the circumstances of the offence and to the length of the sentence and so on.
55. Subsection (1) and (2) of section 117C together make manifest the strength of the public interest. In order to displace that public interest, the harshness brought about by the continuation of the deportation order must be undue, i.e. it must be sufficient to outweigh that strong public interest. Inevitably, therefore, there will have to be very compelling reasons. That conclusion is consistent with the MF Nigeria and ZP India even though those authorities are based on different Immigration Rules and statutory provisions.
56. The undue harshness test in section 117C(5) has been inserted by primary legislation and it was not in force at the time of the Immigration Rules considered in ZP India. Mr Howells in effect argues that the undue harshness test substitutes some new and lower test for that which preceded it under the Immigration Rules. Underhill LJ there held that paragraphs 398 and 399 of the Immigration Rules applying before the commencement date of section 117C meant that in a post-deportation revocation application compelling reasons had to be shown (see above, paragraph 38). By the process of reasoning that I have just set out, I reach the same conclusion in relation to a post-deportation revocation application after the commencement of section 117C to D. I therefore accept the submission of Mr Singh that the same conclusion as Underhill LJ reached in relation to a post-deportation revocation application made before the date on which section 117C(5) came into force must similarly apply in relation to the same application made after that date, namely that very compelling reasons must be shown to displace the public interest in deportation.
57. I therefore reject Mr Howells' submission that undue harshness can be determined on any other basis. I conclude that the commencement of section 117A to D of the 2002 Act does not mean that a different and lower weight is to be given to the public interest in applications to revoke a deportation order following deportation than in other deportation situations. As I have explained, the result is that the same standard must apply in this case as in a pre-section 117A to D case like ZP (India).
58. MM (Uganda) does not mandate a different conclusion. In the passage cited above, on which Mr Howells relies, this Court was dealing with the elements which have to be taken into account in performing the proportionality exercise required by Article 8 of the Convention and not with the discrete question of the weight required to be given to the public interest. The last sentence of the citation from Underhill LJ's judgment at  in paragraph 36 above demonstrates that this is a separate question.
59. Mr Howells realistically accepts that A would have to show a material change of circumstances between the dismissal of the appeal against the deportation order and the revocation application. As Underhill LJ held in ZP India, the starting point must be that the assessment of what was in the public interest at the date on which the deportation order was made cannot be of any less weight at the later stage when revocation is sought. This means that objections to the making of a deportation order which were unsuccessful at the time it was made are unlikely to be successful grounds for obtaining the revocation of a deportation order after removal from the jurisdiction.
60. Turning to the FTT's judgment, I find that there is little evidence that the FTT attributed appropriate weight to the public interest. I accept that they adverted to the question of the public interest, in particular in paragraph 28 of their determination (see paragraph 22 above). I also accept that the FTT exercised a critical judgment in rejecting the effect of the deportation order on the Sponsor as grounds for revocation. But that was a plain case.
61. As regards R's case, the FTT did not apply the equivalent critical judgment. For instance, the FTT did not consider alternative ways in which R's care needs could be met (whereas the Upper Tribunal judge giving permission to appeal to that tribunal referred to the ability for R to access the care he required through a statement of educational needs). Nor did the FTT critically examine whether R's phobia about flying ruled out other contact between A and R. So they do not consider any other way in which R could see his father outside the jurisdiction on a basis which did not involve air travel, for instance if his father travelled to some other part of Europe which R could access by boat or train. On the other hand, as the FTT said, since R is a British citizen, he could not be expected to relocate outside the jurisdiction. That factor does not answer this matter in A's favour as he still has to show that the continuation of the deportation order causes undue hardship.
62. I conclude that the FTT did not demonstrate that they had given appropriate weight to the public interest. Paragraph 34 of the FTT's determination (paragraph 28 above) contains the FTT's summary of their reasons for allowing the appeal, but it makes no reference to any element of the public interest. If the FTT indeed considered that the circumstances were very compelling, it was for them to demonstrate this in the reasons they gave.
63. In my judgment, this point disposes of this appeal. It is therefore unnecessary to deal with the remaining grounds of appeal. A objects to some of them in any event on the grounds that they were not argued in the Upper Tribunal but I need not express any view either way on those points.
64. The balancing exercise in this case has to be performed again. The FTT did not seek to analyse whether there were very compelling reasons why the deportation order should be revoked. In those circumstances, if my Lord and my Lady agree, the appropriate order is that the appeal should be allowed and that the matter should be remitted to the Upper Tribunal for further consideration in accordance with the judgment of this Court.
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