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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> AK v Secretary of State for the Home Department [2014] EWCA Civ 1642 (27 November 2014) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2014/1642.html Cite as: [2014] EWCA Civ 1642

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand London, WC2A 2LL
		27 November 2014

1. LORD JUSTICE LONGMORE: This matter is going to be remitted for re-determination. I will give a short explanation of why the Secretary of State has agreed that that is the position in this case.
2. Section 32(5) of the UK Borders Act provides that, subject to section 33, the Secretary of State must make a deportation order in respect of a foreign criminal. A foreign criminal is a person who is not a British citizen, is convicted in the United Kingdom of an offence and is sentenced to a period of imprisonment of at least 12 months.
3. Section 33 provides that section 32(5) does not apply where the removal of the foreign criminal would breach his rights under the Human Rights Convention. In this case, it is Article 8 of the Convention that is potentially engaged.
4. At the time when the Tribunals, both the First-tier Tribunal and the Upper Tribunal, were considering this matter the relationship between deportation and Article 8 was provided for in the Immigration Rules and particularly in Immigration Rule 398, which I summarise by saying that if the case did not come within paragraph 399 or 399A of the Immigration Rules, then in a case of somebody who was sentenced to a period of imprisonment of at least 12 months then it would only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
5. The brief facts in this case are that the Appellant was born on Pakistan on 1 August 1970 and first arrived in the United Kingdom on 10 August 2001 on a visit visa valid until 25 December 2001. He had already met F, who subsequently became his wife in July 2003. She claimed asylum on 16 August 2001 and while that claim was pending, she gave birth to a daughter, V.
6. On 13 February 2002, the Appellant was granted a multi visit visa of 2 years. During the validity of that visa, F was granted indefinite leave to remain as a refugee from persecution in Pakistan. She was in due course naturalised and became a UK citizen on 24 October 2006. V was registered as a British citizen on the same date.
7. Meanwhile, the couple got married on 10 July 2003. On 13 March 2004, a son, A, was born. In April 2004, the Appellant was granted a further multi visit visa, this time for five years expiring on 29 April 2009, during the currency of which he left and returned to the United Kingdom on at least three occasions.
8. On 12 November 2008, the Appellant applied for indefinite leave to remain. This application was refused, but he was given discretionary leave to remain until 2 April 2012 on the basis that his wife had a depressive illness and that he would be able to care for his children.
9. Then on 17 September 2011, the Appellant was remanded in custody for communicating false information about a bomb hoax. On 25 November 2011, he was convicted in Oxford Crown Court and sentenced to 3 years' imprisonment. The sentencing remarks of the judge are more or less fully set out in the Secretary of State's decision in this matter.
10. In December 2011, the Appellant was served with a liability to deport notice. On 27 March 2012, before his discretionary leave to remain expired and while he was in prison, he applied for leave to remain pursuant to Article 8 and on compassionate grounds. He had received the occasional visit from his wife and met his children from time to time while on day release from prison. He was occasionally allowed to stay overnight and was finally released from prison on 12 March 2013 after serving about 16 months in custody.
11. On 15 March, he was served with the deportation order with which this case is concerned which rejected his application and it confirmed his removal because "it has been concluded that there are no exceptional facts raised which warrant departure" from the presumption contained in the 2007 Act and the Immigration Rules in favour of deportation.
12. The Appellant appealed to the First-tier Tribunal. He there got a favourable decision, but the Upper Tribunal said that there was an error of law for various reasons.
13. The curious fact is that both the First-tier Tribunal and the Upper Tribunal appear to have proceeded on a basis other than that contained in paragraph 398 of the Immigration Rules referring to exceptional circumstances. They both proceeded on the basis that the relevant law was contained in SS (Nigeria). That is, however, not the case.
14. When the case was called on, we pointed out the rather glaring omission to both counsel. In the course of his submissions in trying to deal with that matter, Mr Nicholson said, to the knowledge of this court for the first time, that there had been a fourth child born to the couple since the original determination was made. Of course, no assessment by any Tribunal by reference to any of the Immigration Rules has dealt with that matter. In those circumstances, the Secretary of State has accepted that this matter should be redetermined by the Upper Tribunal once again.
15. The effect of that is, of course, that it will now be determined under the new provisions relating to Article 8 and foreign criminals that are contained in section 117(a), (b) and (c) of the Nationality, Immigration and Asylum Act 2002, having been inserted into that Act by the Immigration Act 2014 which was given the Royal Assent on 20 July of this year.
16. Mr Gullick for the Secretary of State makes no concessions as to whether the effect of that Act and the Rules under the new Immigration Rules made pursuant to those provisions will have any different effect from the decision of the Upper Tribunal, but he accepts that there are now new circumstances of which he seems to have become aware for the first time which make it appropriate that this matter should now be redetermined.
17. For those reasons, that is what we will order. Our short judgment will accompany the order so that the Upper Tribunal may know what it is that it now has to deal with.