Kevin Christopher Smith v The Secretary of State for the Home Department

1. The appeal raises questions regarding the assessment of applications to revoke a deportation order made from outside the UK. Background

2. The appellant appealed the respondent’s decision to refuse a human rights claim in the context of an application to revoke a deportation order made by the appellant while outside the UK i.e. a post-deportation application.

3. The appellant is a Jamaican citizen who entered the UK in 1999 and was granted leave to enter as a visitor for a period of six months. He was granted further leave to remain as a student until 31 January 2001 but overstayed when the visa expired. On 02 October 2000 he was convicted of supplying a class A drug. He was sentenced to a period of 32 months’ imprisonment and recommended for deportation. A deportation order was signed on 11 October 2001. On 24 October 2001 he was deported to Jamaica.

4. The appellant re-entered the UK in breach of the deportation order on 18 March 2002. The breach was compounded by the fact that he entered in a false identity. He was granted leave to enter as a visitor for six months. Further leave to remain was granted as a student and then subsequently as the spouse of a work permit holder. His leave was extended until 05 December 2004 in line with the sponsor’s leave to remain. The appellant’s first child was born on 11 December 2004.

5. On 18 November 2004 the appellant was arrested. Checks revealed his true identity and that he had returned to the UK in breach of a deportation order. The appellant made submissions relating to his right to family life with his wife and child but these were refused with a right of appeal. He did not exercise the right of appeal. It is unclear from the evidence whether the appellant absconded after release from detention but it seems that no further action was taken to remove him despite the fact that he was arrested on two occasions in 2006. The respondent states that by September 2007 he was recorded as an absconder for non-compliance with reporting restrictions.

6. On 01 August 2008 the appellant was convicted of assaulting a police officer and sentenced to a period of imprisonment of two months and nine days. The respondent made arrangements to remove him from the UK. At the end of 2008 and early 2009 the appellant made a number of human rights submissions and an application for judicial review; all were rejected or refused. Further submissions were made on 30 January 2009 stating that the appellant had three children from a previous relationship. The further submissions were rejected and the appellant was removed to Jamaica on 11 February 2009.

7. On 25 September 2013 the appellant applied for revocation of the deportation order made on 11 October 2001. The respondent treated it as a human rights claim and refused the application in a decision dated 10 August 2015 without a right of appeal. A second decision was made on 12 October 2015. Although the reasons for making a second decision are not explained, it seems apparent that a right of appeal was not granted in relation to the first decision. I find that it is reasonable to infer that the respondent may have had to reissue the decision to refuse a human rights claim because it should have attracted a right of appeal. In the second decision the respondent considered the family life issues raised by the appellant with reference to paragraphs 398-399A of the Immigration Rules but concluded that the public interest in maintaining his exclusion from the UK was not outweighed by his family circumstances.

8. First-tier Tribunal Judge Hussain (“the judge”) dismissed the appeal in a decision promulgated on 01 August 2016. The judge considered the terms of paragraph 391 of the Immigration Rules, as well as the particular circumstances of the case, including the family life issues raised by the appellant, before concluding that his family life did not outweigh the public interest in his continued exclusion from the UK.

9. The appellant seeks to appeal the First-tier Tribunal decision on the following grounds: (i) The First-tier Tribunal misunderstood and misapplied the test set out in paragraph 391 of the Immigration Rules. In particular, the judge erred in apparently requiring the appellant to have spent ten years outside the UK before the provision contained in paragraph 391(a) could apply. (ii) The First-tier Tribunal took into account irrelevant considerations relating to the appellant’s relationships with several women, rather than concentrating on the material issue, which was the strength of his relationship with the four children he has in the UK. Legal framework

10. Section 32 of the UK Borders Act 2007 states:

32. Automatic deportation E+W+S+N.I. (1) In this section “foreign criminal” means a person— (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. (3) Condition 2 is that— (a) the offence is specified by order of the Secretary of State under section 72(4) (a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and (b) the person is sentenced to a period of imprisonment. (4) For the purpose of section 3(5) (a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless— (a) he thinks that an exception under section 33 applies, (b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or (c) section 34(4) applies. (7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.

11. Following changes to the appeal regime made by the Immigration Act 2014 , for the purpose of most appeals, the relevant exceptions will be section 33(2) (removal in pursuance of a deportation order would breach the European Convention on Human Rights or obligations under the Refugee Convention) and section 33(4) (removal in pursuance of a deportation order would breach rights under the EU treaties).

12. Paragraphs 390-392 of the Immigration Rules make provision for revocation of a deportation order.

390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: (i) on the grounds on which the order was made; (ii) any representations made in support of revocation; (iii) the interests of the community, including the maintenance of an effective immigration control; (iv) the interests of the applicant, including any compassionate circumstances. 390A. Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors.

391. In the case of the person who has been deported following conviction for a criminal offence, the continuation of the deportation order against that person will be the proper course: (a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order, when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or (b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least four years, at any time, Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors. 391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.

392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.

13. In SSHD v ZP (India) [2015] EWCA Civ 1197 the Court of Appeal considered the legal framework relating to revocation of deportation orders. Lord Justice Underhill noted that paragraph 391 provided for a “prescribed period” of time before an application for leave to enter will be entertained. In cases involving less than four years’ imprisonment the prescribed period is ten years. However, the policy is expressly stated not to apply in two distinct circumstances (i) where continuation of the deportation order would be contrary to the ECHR or the Refugee Convention (“the Conventions exception”) or (ii) where “there are other exceptional circumstances that mean the continuation is outweighed by compelling factors” (“the sweep-up exception”). He went on to make the following findings: “24. It does not, however, in my view follow that paragraph 391 requires a fundamental difference in approach in considering post-deportation revocation applications from that which is followed in considering pre-deportation applications under paragraphs 390A/398-399A. It is true that the structure of paragraphs 398 (at the relevant time) and 391 is different. In the case of the former the Secretary of State has set out herself to formulate the approach required by article 8, whereas in the case of the latter she has stated her policy but acknowledged that it should not apply where that would lead to a breach of the ECHR (in practice, article 8). It is also true that there are some minor differences of wording. But the difference in drafting structure does not require a different approach as a matter of substance, since we know from MF that the exercise required by paragraph 398 is the same as that required by article 8. Likewise, while the use in the sweep-up exception of the phrase “ other exceptional circumstances [involving] compelling factors” no doubt implies that it is only in such circumstances that the Secretary of State’s general policy will be displaced by article 8, that too is consistent with the approach in MF . As for the differences in wording, they may be vexing to the purist but they are plainly not intended to reflect any difference of substance. The exercise required in a case falling under paragraph 391 is thus broadly the same as that required in a case falling under paragraph 390A or paragraph 398. Decision-takers will have to conduct an assessment of the proportionality of maintaining the order in place for the prescribed period, balancing the public interest in continuing it against the interference with the applicant’s private and family life; but in striking that balance they should take as a starting-point the Secretary of State’s assessment of the public interest reflected in the prescribed periods and should only order revocation after a lesser period if there are compelling reasons to do so.

25. Mr Biggs argued that a fundamental difference between the decision whether to make a deportation order in the first place and the decision whether to revoke a subsisting order short of the prescribed period – and, particularly where, as here, the applicant has been deported – is that in the latter case the public interest in maintaining the order will generally diminish with the passage of time and that that must be borne in mind in striking the proportionality balance. I would accept that up to a point. Where there are compelling factors in favour of revocation the applicant’s case is – other things being equal – bound to be stronger if they have already been excluded for a long period. But I would not accept that the passage of time can by itself be relied on as constituting a compelling reason for early revocation. It is inherent in the making of a deportation order that there must be a period before the deportee becomes eligible for re-admission: otherwise it would be a mere revolving-door. Mr Biggs did not contend that the ten-year prescribed period applicable to foreign criminals sentenced to between one and four years’ imprisonment was itself irrational or that it inherently involved any breach of article 8. That being so, the default position must be that deportees should “serve” the entirety of the prescribed period in the absence of specific compelling reasons to the contrary.

26. Paragraph 391A . The phrase “in other cases” at the beginning of paragraph 391A must at least exclude the cases covered by the immediately preceding paragraph, i.e. paragraph 391, so that it certainly has no application in the present case. It is not necessary for us to decide whether its effect is to exclude also cases covered by paragraph 390A – so that in practice it means “in cases other than those of foreign criminals” – but the Government Legal Department submitted that that was plainly the intention, and I am inclined to agree.”

14. In IT (Jamaica) v SSHD [2016] EWCA Civ 932 the Court of Appeal sought to apply the principles outlined in ZP (India) in the context of a ‘post-deportation’ application for revocation of a deportation order before the expiry of the ‘prescribed period’. Lady Justice Arden observed, on the face of section 32(6) , that the Secretary of State has discretion to revoke a deportation order without reference to the exceptions contained in section 33 but concluded, when considering revocation, that the weight to be given to the public interest in deportation could not in practice be any less than when the original deportation order was made. She referred to Lord Justice Underhill’s observation at [15] in ZP (India) where he stated that the public interest in deportation did not cease the moment a foreign criminal leaves the country.