Neutral Citation Number: [2013] EWCA Civ 1500
Case No: C5/2013/0384
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 27th November 2013
Before:

THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
THE RIGHT HONOURABLE LORD JUSTICE MCFARLANE
and
THE RIGHT HONOURABLE SIR STANLEY BURTON
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Between:

	PK CONGO	Appellant	
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	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	
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 (Transcript of the Handed Down Judgment of
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Mr Richard Drabble QC & Mr Mikhil Karnik (instructed by Fadiga & Co) for the Appellant 
Mr Charles Bourne (instructed by Treasury Solicitors) for the Respondent
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Judgment
Sir Stanley Burnton: 
Introduction
1.	This is an appeal by PK against the determination of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judges Latter and Spencer) allowing the Secretary of State’s appeal against the determination of the First-tier Tribunal (Immigration Judge Walker and Mr A Armitage) which had allowed his appeal against the decision of the Secretary of State refusing to revoke the deportation order made against him as long ago as 4 May 2007.
2.	There is only one ground of appeal, namely that the Upper Tribunal wrongly held that the decision of the First-tier Tribunal was legally flawed. There is now no other challenge to the Upper Tribunal’s determination, which in other respects is unexceptionable, and indeed is a very full and careful decision.
The facts in summary
3.	The appellant is now aged 30. He was born in, and is a national of, the Democratic Republic of the Congo. He came to this country with his parents and siblings in December 1990, when he was aged 7. He and the rest of his family were granted exceptional leave to remain until March 1999 and then indefinite leave in March 2002. In 2003 the appellant’s parents and two of his brothers were granted British Citizenship; his application for Citizenship was refused by reason of his criminal convictions.
4.	His criminal convictions were summarised by the Asylum and Immigration Tribunal in its determination dated 16 August 2008, to which I shall have to refer below:
“54. … The Appellant has 10 convictions from 15 October 1996 when he was 13 until 03 June 2003 when he was 20. The convictions were in respect of 14 offences which included five robberies and two attempted robberies, one residential burglary and one offence relating to police/courts/police. In addition he was given two cautions in 1996 for a sexual offence and an offence against property. …”
5.	He received sentences of increasing gravity until his appearance at Inner London Crown Court on 3 June 2003, when he was sentenced to a total of 6 years’ detention in a Young Offenders’ Institution for 2 counts of robbery, 2 of attempted robbery, one of burglary and one of theft. The sentencing judge’s sentencing remarks included the following:
“The broad pattern of robbery of small post offices and shops extended from June to September of last year (2003). Offences in which each of you chose to take part, shows in respect of the robberies that were actually successful and indeed some of them were not, one or more of the following features: extreme violence to the protective screen at the post offices, the visible use of terrible weapons with the resulting and inevitably fright caused to the staff. … Another, some violence to the person, usually not very great but obviously quite sufficient to cow or frighten one or other members of the staff.  On one occasion, one of the robbers in the end was actually astride the pharmacy assistant as she lay on the floor.  Thirdly, the visible possession of weapons such as hammers and screwdrivers.  On one occasion a screwdriver was used, was held and brandished to reinforce a demand.  Fourthly, two or more, usually three, robbers were involved, or, whether in the dark or outside of it, fit young men usually hooded.  No one can doubt of course that only heavy custodial sentences are justified.”
6.	As a result of the 2003 convictions and sentences, in October 2006 the Secretary of State decided to make a deportation order. The appellant appealed against that decision to the Asylum and Immigration Tribunal, claiming that his deportation would be in breach of the United Kingdom’s obligations under the Refugee Convention and under articles 3 and 8 of the European Convention on Human Rights. The Tribunal dismissed his appeal in a determination dated 15 February 2007. It held that there was no evidence that he would be at risk on his return to the DRC. When considering his article 8 claim, the Tribunal quoted from a Parole Notification dated 4 August 2005:
“… The Panel [of the Parole Board] has noted the seriousness of the index offences, the extreme violence and weapons used to terrify the victims, Mr K’s criminal record, including earlier robberies and breaching of trust, his poor behaviour in custody, most notably the most recent adjudications after all the work he has done, the work outstanding in various risk areas, the lack of support from his probation officers and his high risk assessment.
Against this it has weighed the offending behaviour work he has undertaken and his expressed willingness to cooperate with probation and his family support and the views expressed in his representations.
The Panel concludes that the risk he presents still remains too high for release on licence …”
7.	The Tribunal’s conclusions on his article 8 claim were as follows:
“75. The appellant is a young, fit, adult male, a citizen of the DRC.  He has committed serious offences and there is a risk that he will commit further serious offences with consequent harm to the community.  Weighing those factors against the nature and quality of his established family and private life, as we have found them to be, we are not satisfied that there is any truly exceptional feature in the appellant’s case which would make his deportation to the DRC disproportionate.  For the reasons we have set out we are satisfied that his deportation to the DRC would be a lawful action to prevent disorder and crime, as permitted by Article 8(2), and would be proportionate.  It follows that we are satisfied that the appellant’s deportation to the DRC would not be in breach of his rights, or the United Kingdom’s obligations, under Article 8.
76. Having made that finding, we have considered whether there are any circumstances, which we have not considered when determining whether Article 8 would be violated in this appellant’s case, which would constitute exceptional circumstances that would outweigh the public interest in deportation.   We are satisfied that we have considered all relevant factors when determining whether Article 8 would be violated by the appellant’s deportation.  We are satisfied that there are no exceptional circumstances that would outweigh the public interest in his deportation.”
 Accordingly the Tribunal dismissed his appeal.
8.	In May 2007 the appellant absconded, but he was arrested on 6 June 2007. A deportation order was made on 4 May 2007. In July 2007 he was convicted of dangerous driving and of driving without insurance and without a licence and sentenced to 4 months’ imprisonment. 
9.	In February 2008 the appellant again made an asylum and human rights claim, largely repetitious of his earlier claim, and sought the revocation of the deportation order. The Secretary of State refused to revoke the order, and the appellant then again appealed. His appeal was dismissed by the Asylum and Immigration Tribunal in the determination dated 16 August 2008. In the course of a well-reasoned determination, the Tribunal commented: 
“The Appellant’s criminal record alone persuades us to find that his removal would be proportionate.”
The Tribunal cited the judgment of May LJ in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094, and that of Wilson LJ in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694, and finally concluded that the appeal should be dismissed.  The appellant made written and oral applications for the Tribunal’s determination to be reconsidered: they were refused. In July 2008 the appellant brought judicial review proceedings against the Secretary of State; his claim was dismissed in October 2009 as totally without merit.
10.	The appellant again applied to the Secretary of State for the revocation of the deportation order. On 12 May 2011 the Secretary of State refused revocation. He appealed against her decision. It was this appeal that was considered, and allowed, by the First-tier Tribunal in its decision promulgated on 16 August 2011.
The determination of the First-tier Tribunal
11.	The First-tier Tribunal rejected the appellant’s repeated claims that his removal to the DRC would infringe his rights under the Refugee Convention and articles 2 and 3 of the European Convention on Human Rights. These aspects of its decision do not fall for consideration. The Tribunal addressed his article 8 claim in the last part of the determination:
“42. The Appellant’s claims to family life have several aspects.  They are firstly based on his relationship with his parents and other family members.  It is secondly based on his relationship with his elder daughter [A] and who still resides with her mother. Thirdly it is based on his relationship with his current partner [Miss B] and their child [C] who was born 19 May 2011.  Fourthly a family life claim was based on the Appellant’s earlier relationship with [Miss D] and her 3 Children.  This aspect does not now appear to be being pursued.  It is not being pursued by the Appellant because he is no longer in a relationship with [Miss D], he is no longer living with her and his oral evidence today was that he did not see much of her 3 children.
43. The first aspect of the Appellant’s claim to have an established family life and which relates to his parents is not one that we accept.  We accept that he is living with them in the family house and that they are fully supporting him with regard to his current Appeals.  Nevertheless they have not shown that their relationship is anything out of the ordinary and is no different to the normal one of parents and an adult child.  There has not been shown any degree of emotional dependency greater than the norm.
44. We do find that there is an established family life between the Appellant, his partner [Miss B] and their daughter [C].  There is also a separate family life between the Appellant and his elder daughter [A].
45. There will be interference with this established family life if the Appellant is returned to DRC.  We accept the evidence proffered that [Miss B], her daughter and the elder child [A] would not want to or would not be allowed to go to DRC.  The interference with the family lives of those involved will be of such gravity as to engage Article 8.
46.  The next step is whether the decision is in accordance with the law and which it is.  Following from that whether its object is to further one or more of the legitimate interests set out in Article 8 (2) and which it is these being the prevention of disorder or crime and maintenance effective immigration control. 
47. The last step is whether the extent of the interference is necessary in the interest of a democratic society in order to fulfil those legitimate aims, and proportionate.  Having taken all matters into account and conducted a balancing exercise we find that the decision would not be proportionate.
48. With regard to the points to be considered against the Appellant he does have a very poor criminal record and has been offending for almost a decade.  This raised the important point of his risk of re-offending.  On the one hand this risk has been described as high and on the other hand in the expert’s report that has been produced by Dr A Abdelnoor this risk has been put forward as low.  Dr Abdelnoor’s report does have some flaws in that he did not appear to know about July 2007 conviction and imprisonment at Croydon Magistrates’ Court.  Also his information came entirely from the Appellant himself and without any assessment of the Appellant’s credibility.  Nevertheless the Appellant can claim not to have reoffended during his latest period of freedom, from 13 May 2010 when he was granted bail to date.
49. The Appellant’s history of his relationship shows him to be feckless although he is now claiming that he has reformed and now accepts his responsibilities with regard to his partner and his children.  His oral evidence today was that he had been quite prepared to enjoy relationships with two women at the same time and for an extended period.  He was apparently claiming that his main relationship was with [Miss D] and her 3 children but once his daughter [C] was born in May of this year he has all intents and purposes changed his position and now considers [Miss B] to be his partner, and only partner.
50. Whatever the faults and flaws of the Appellant himself these should not be allowed to affect the family life rights of most importantly his children and to some extent those of [Miss B]. She apparently was aware of his continuing relationship with [Miss D] and she chose to stand by him.
51. The two children, [A] and [C] have regular contact with the Appellant.  He sees [A] a couple of times a week and is in regular contact with her.  He sees his younger daughter [C] every day and plays an active role in her care.  All of this would be lost if the Appellant were to be removed.  This loss or rather interference would in our view outweigh the benefits to society generally in deporting this Appellant.
52. We have no doubt that the previous Appeals and Hearings which considered the Appellant’s situation were all quite correctly and properly decided.  However events have moved on, more particularly with the Appellant’s current relationship with [Miss B] and most importantly of all the birth of his daughter [C] on May of this year.  These recent events have tipped the balance in the proportionality exercise in favour of the Appellant. We have also taken into account the provisions of Section 55 of The Borders, Citizenship and Immigration Act 2009 with respect to safeguarding and promoting the welfare of these children.”
12.	The Upper Tribunal (Upper Tribunal Judge Latter) held that the First-tier Tribunal had erred in law. In his decision dated 14 February 2012, he stated:
“16. The facets of the public interest that had to be considered    as identified by Wilson LJ in OH (Serbia) are:
(a) the risk of re-offending by the person concerned;
(b) the need to deter foreign criminals from committing serious crimes by leading them to understand that, whatever the other consequences, one  consequence of them may well be deportation; and 
(c) the role of deportation as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
17. None of these factors were taken into account by the Tribunal when assessing proportionality and, as Mr Tufan rightly pointed out, it made no findings on the risk of reoffending.  It regarded the appellant’s current relationship with [Miss B] and in particular the birth of his daughter [C] as tipping the balance in his favour but this finding is not set in the context of any proper or adequate analysis of all the factors relevant to an assessment of proportionality.”
This reasoning was repeated in the determination of the Upper Tribunal dated 29 November 2012 which is under appeal to this Court.
The parties’ contentions
13.	In his typically attractive submissions, Mr Drabble QC contended that read sensibly the determination of the First-tier Tribunal showed that it had taken an appropriate and lawful approach to the only real issue before it, namely whether the appellant’s deportation was a proportionate decision having regard to his rights under article 8.1 of the European Convention. It was clear that the First-tier Tribunal had read the earlier Tribunal decisions, since it expressly stated that it had agreed with them. It must therefore have applied the same test as they had, weighing the importance of the public interest in the appellant’s removal against his and his family’s article 8 rights. It was unnecessary, and unduly formalistic, in a case such as the present, in which the applicable authorities had already been considered and quoted by the earlier Tribunals, for the First-tier Tribunal to state more than it had.
14.	In his concise and cogent submissions for the Secretary of State, Mr Bourne submitted that the First-tier Tribunal had given insufficient reasons for its decision. It was particularly important for the Tribunal to explain how it had arrived at its conclusion given the seriousness of the appellant’s offending and the fact that it was differing from a line of previous decisions. 
Discussion
15.	The challenge to the First-tier Tribunal’s determination was a reasons challenge. The Secretary of State disclaimed any contention that its decision was perverse. 
16.	In my judgment, the First-tier Tribunal’s determination was indeed inadequately reasoned. In effect, Mr Drabble contended that its determination incorporated the statements of the law set out in the earlier decisions. The First-tier Tribunal referred to those decisions with extreme brevity. In paragraph 7 of its determination, it stated:
“7. The background history to this Appeal, together with details of previous Hearings are set out in paragraph 7 of the Refusal letter and to avoid repetition are not set out in this determination.”
The only other reference is in the first sentence of paragraph 52, which I have set out above.
17.	In my judgment, these references were wholly inadequate. It is impossible to ascertain from these references whether the First-tier Tribunal applied the same or a different test to the previous Tribunals. Moreover, it would have been insufficient simply to adopt those Tribunals’ reasoning. The 2007 determination was made at a time when the current authority (R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368) was believed to require an appellant asserting an article 8 claim to establish exceptional circumstances that outweighed the public interest in immigration control. That is now recognised not to be a correct approach: see Huang [2007] UKHL 11, [2007] 2 AC 167. The 2008 determination preceded the enactment of section 55 of the Borders, Citizenship and Immigration Act 2009, the importance of which came to be recognised by the judgment of the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 [2011] 2 AC 166, and therefore contained, by present standards, an inadequate consideration of the interests of the children of his then partner, to whom he was said to be close. 
18.	I cannot tell, from the First-tier Tribunal’s determination, what importance it placed on the public interest in the appellant’s removal. It was clear from those decisions that the public interest strongly outweighed the article 8 claim relied upon by the appellant. To describe his current relationship with [Miss C] and the birth of his daughter as “tipping the balance”, as the First-tier Tribunal did in paragraph 52, implies that his claim had previously been close to balancing the public interest. That would be a wholly inaccurate assessment. Moreover, given that the First-tier Tribunal itself described the appellant as “feckless” in connection with his relationships with women, it is impossible to see how his relationship with [Miss B] could be given great weight. Furthermore, there is the statement in paragraph 50 of the determination: 
“Whatever the faults and flaws of the Appellant himself these should not be allowed to affect the family rights of most importantly his children and to some extent those of [Miss B].”
This not only contains an understatement of the appellant’s criminal offending: it demonstrates an incorrect and unlawful approach to the balancing exercise inherent in article 8.
19.	I also accept Mr Bourne’s submissions that both the seriousness of the appellant’s offending, and the fact that the First-tier Tribunal was differing from two previous Tribunal decisions, added to the need for a fully-reasoned determination. Lastly, I agree with him that it would be contrary to both the public interest and the interests of individual appellants if, in the not uncommon situation in which there have been previous Tribunal decisions, Tribunals were able to give abbreviated or cursory reasons. 
Conclusion 
20.	For the above reasons, in my judgment, the Upper Tribunal was right to find that the First-tier Tribunal had made a material error of law. I would dismiss this appeal.
21.	I would add two comments. First, in my judgment the Court of Appeal should view generously a decision of the Upper Tribunal as to the adequacy of the reasons given by the First-tier Tribunal, and should not readily come to a different view.
22.	Secondly, the delays and multiple applications and appeals made by the appellant demonstrate that the legislation, and perhaps the lack of adequate resources in the UKBA and the Tribunals, create too many opportunities for litigation and delays. The decision of the Asylum and Immigration Tribunal in 2007 was clear and was not and could not have been successfully challenged. It is difficult to see why the appellant was not removed soon after he was arrested in June 2007 following his absconding. Delay in removal inevitably gives rise to a strengthened article 8 claim to remain in this country. 
Lord Justice McFarlane
23.	I agree.
Lord Justice Longmore
24.	I agree.  It is unnecessary for tribunals formalistically to quote the judgment in OH (Serbia) and then apply it mechanistically in every case but they must at least engage meaningfully with the three-fold criteria of risk of re-offending, the need for deterrence and public revulsion in relation to serious criminal activity such as (in this case) robbery with weapons of small post offices and shops resulting in violence to their defenceless owners and assistants.  With respect to Judge Walker and Mr Armitage, they appear in paragraph 52 of their determination to have taken all that as read or (at least) they have failed to explain why the new relationship with [Miss B] and the birth of a daughter to a man they have already described as feckless must be regarded as “tipping the balance” against the major public interest considerations identified in OH (Serbia).  The Upper Tribunal determination is a model of how it can be done.
25.	I also agree with para 22 of Sir Stanley’s judgment that, although as we said in AP (Trinidad and Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551 this court is as adept as the Upper Tribunal at identifying errors of law made by First-tier Tribunals, inadequacy of reasons is a rather special error of law.  If the Upper Tribunal considers that a First-tier determination is inadequately reasoned, that is a decision which should be treated with respect by this court because the Upper Tribunal is composed of judges who are highly experienced in making immigration and asylum decisions.  Their views about inadequacy of reasons are likely to be right.
26.	I also agree that it is utterly mystifying that the appellant was not deported in 2007.  It must be depressing for immigration and asylum judges, when they take great care over their decisions, to find that their decisions are not acted on for several years and sometimes, not at all.