Neutral Citation Number: [2014] EWCA Civ 932
Case No: C5/2012/2895 
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 

Thursday, 12 June 2014
 
B e f o r e: 

THE CHANCELLOR OF THE HIGH COURT 
 
LORD JUSTICE RICHARDS 

SIR STANLEY BURNTON 

---------------------------------
Between: 

SINGH 
Appellant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent 
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Mr A Mahmood (instructed by Messrs) appeared on behalf of the Appellant
The Respondent did not appear and was not represented.
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J U D G M E N T

1.	LORD JUSTICE RICHARDS:  This is an appeal against a determination of the Upper Tribunal (Immigration and Asylum Chamber) upholding a decision of the Secretary of State for the Home Department to make a deportation order against the Appellant.  The case has a substantial history but the issues now before us are relatively limited in scope.  In order to explain them, I need first to summarise the salient facts.  
2.	The Appellant is an Indian national born in 1954 who entered the United Kingdom illegally in 1984 and has remained here without leave ever since.  He married a Ms Kaur in 1991.  They have two children:  a daughter born in February 1992 and now aged 22, and a son born in May 1993 and now aged 21.  Ms Kaur and the children are British citizens.  
3.	In February 1988, when he was aged 33 and before his marriage, the Appellant committed an offence of rape.  He was working on a market stall.  The victim, a woman then aged 59, wanted to purchase a pair of jeans from his stall.  He took her to a lorry in which he said she could try on the jeans, but he then pushed her over, pinned her down, removed her underwear and raped her.  It was a serious offence with a serious impact on the victim and her family.  The rape was reported, swabs were taken and DNA samples were kept, but the Appellant was not identified or arrested at the time.  It was only much later, as I will explain, that he was caught.  
4.	In May 2005, he attempted to regularise his immigration status in this country, submitting an application for indefinite leave to remain on the ground of long residence.  In March 2006, he was arrested in respect of offences of driving with excess alcohol and other motoring offences.  On his arrest, DNA samples were taken.  In due course, a match was made with the DNA samples taken at the time of the rape offence in 1988.  The result was that, some 18 years after that offence had been committed, the Appellant was charged with the rape.  He pleaded guilty on the day of trial and was sentenced in December 2006 to four and a half years' imprisonment.  
5.	In June 2008, he was served with a decision refusing his application for indefinite leave to remain and with notice of a decision to deport him on the ground that deportation was conducive to the public good, having regard to the seriousness of the offence of rape.  The deportation decision was taken pursuant to section 3(5)(a) of the Immigration Act 1971 and paragraph 364 of the Immigration Rules as then in force.  
6.	The Appellant appealed, relying on Article 8 of the European Convention on Human Rights and paragraph 364 of the Immigration Rules.  His appeal was dismissed by the AIT.  Reconsideration was ordered by the High Court on the ground that the Tribunal had arguably erred in not applying the Home Office's policy DP5/96 in respect of children with long residence.  On a further reconsideration, the Tribunal ruled that policy DP5/96 was irrelevant.  On appeal to the Court of Appeal against that decision, it was held that the policy was relevant and should have been considered by the Tribunal and that the Tribunal had also failed to give proper consideration to the issue of relocation of the children to India with the Appellant.  The court remitted the case so that the Tribunal could reconsider all relevant factors and balance them against what the court described as "the very weighty factor of the legitimate aim of deportation in this case".  The Court of Appeal's judgment was given in April 2010 under the title SS (India) v Secretary of State for the Home Department [2010] EWCA Civ 388.  
7.	There was then an unexplained delay of over two years before the remitted case was heard in May 2012 by a panel of the Upper Tribunal (Immigration and Asylum Chamber) consisting of Upper Tribunal Judge Hanson and Deputy Upper Tribunal Judge Juss.  That panel's determination was promulgated on 13 August 2012.  It remade the original Tribunal decision but again dismissed the Appellant's appeal against the decision to deport him.  That is the determination against which the present appeal to this court is brought.  
8.	I refused permission to appeal on the papers but permission was granted by Maurice Kay LJ on an oral renewal in April 2013.  Maurice Kay LJ said that the written statement filed by the Appellant's counsel, Mr Mahmood, for the renewal hearing contained more refined submissions than those in the original grounds and skeleton argument.  As appears from his judgment and the order of the court on that occasion, it was specifically on the basis of the grounds in the renewal statement that permission to appeal was granted.  The written renewal statement has, therefore, stood as the basis of the Appellant’s case on this appeal.  
9.	The determination under appeal is a lengthy document.  In my reasons for refusing permission on the papers I said that although unduly lengthy and laboured, it amounted to a thorough and conscientious reconsideration of the case in the light of the remittal by the Court of Appeal.  I adhere to that view but it is, of course, not dispositive of the specific issues now raised on the appeal.  
10.	The main issues so raised are these.  First, that the Tribunal erred in law in its treatment of policy DP5/96.  Secondly, that the delay of over two years before the case was reheard by the Tribunal following the remittal by the Court of Appeal resulted in unfairness.  Thirdly, that as regards the public interest in deportation of those convicted of serious offences, the Tribunal appears to have applied the more stringent test applicable to automatic deportation rather than the test in paragraph 364 of the Immigration Rules.  There are certain additional points that Mr Mahmood has ventilated or sought to ventilate before us, to which I will refer briefly in due course.  
11.	Going then first to the issue concerning policy DP5/96, that policy was in force at the time of the decision to deport the Appellant but was revoked in 2008.  At the time of the decision to deport it was in these terms: 
"The purpose of this instruction is to define more clearly the criteria to be applied when considering whether enforcement action should proceed or be initiated against parents who have children who were either born here and are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated 7 years or more continuous residence.
Whilst it is important that each case must be considered on its merits, the following are factors which may be of particular relevance:
(a) the length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) the age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents has a history of criminal behaviour or deception." 
12.	The policy applied in this case because the children had been born in this country and had accumulated more than 7 years' continuous residence here.  As I have said, the failure to treat the policy as relevant on an earlier reconsideration was one of the reasons why the Court of Appeal remitted the present case to the Tribunal in 2010.  
13.	In the determination under appeal, the Tribunal tackled the policy head on at paragraphs 43 to 51.  At paragraph 45 it referred to the decision in NF (Ghana) v Secretary of State for the Home Department [2008] EWCA Civ 906 to the effect that there is a presumption against deportation where a child has 7 years’ accumulated residence in this country.  The Court of Appeal had said in that case that the Tribunal should start from the position that it was only in exceptional cases that indefinite leave to remain would not be granted and then go on to consider the extent to which the factors mentioned made the case an exceptional one.  
14.	Having set out the terms of the policy, the Tribunal in the present case mentioned examples of circumstances which have been found in other cases to amount to exceptional circumstances and referred in that respect to two cases decided by way of judicial review in the Administrative Court.  
15.	It then turned to the submissions of the Home Office presenting officer, Mr Smart, in the case before it and said as follows (at paragraph 49):
"In relation to this appeal, Mr Smart stated that the Secretary of State relies upon the factors set out at subparagraphs (a), (b), (d), (e) and (f) of the policy document when considering the facts of the Appellant's behaviour in relation to his failure to regularise his stay in the United Kingdom since entry until the application was refused as a result of the deportation decision, the fact that the Appellant went to ground for a substantial period of time; the fact the children were conceived at a time that the Appellant himself had no leave to remain; that although it may be proved hardship would be suffered, it had not been proved that extreme hardship would be suffered by the children if they had returned to India (a country they have visited and where the second child was sent following his father's conviction and imprisonment as this was deemed to be for his own good); and the Appellant's criminal conduct, the test of exceptionality had been met."  
16.	At paragraph 50 the Tribunal said that it had to consider the situation in respect of all issues at the date of the hearing before it.  In the light of all the circumstances, including the facts relied upon by Mr Smart, it rejected the submission on behalf of the Appellant that if the policy had been properly considered the presumption in favour of allowing the Appellant to remain would not have been rebutted.  It continued (at paragraph 51):
"We find the Respondent has discharged the burden of proof upon her to the required standard to show that the Appellant's criminal conduct, lack of status and failure to attempt to regularise that status sooner all amount to exceptional circumstances sufficient to rebut the presumption in favour of allowing him to remain under the terms of the policy."
17.	The first submission advanced this morning by Mr Mahmood in relation to that analysis is that the failure of the Secretary of State to reach a decision on policy DP5/96 at the material time rendered the Secretary of State's decision to deport unlawful and should have led the Tribunal to allow the appeal to the extent of declaring that the Secretary of State's decision was not in accordance with the law, pursuant to section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002, with the result that the case should have been remitted to the Secretary of State for him or her to take a decision on the policy.  
18.	It does not appear that this point was advanced before the Tribunal below.  If that is right, the point, as it seems to me, is in the circumstances not open to Mr Mahmood.  Nevertheless, out of an abundance of caution, I will deal with it.  
19.	I do not accept the validity of the argument.  On appeal to the Tribunal it was for the Tribunal to apply the policy even though that policy had not been applied by the Secretary of State.  It is a misconception to suggest that the Tribunal had to allow the appeal and remit the case to the Secretary of State to take an original decision on to the policy.  There is nothing about this particular policy to require such an exceptional course, as it would be, to be adopted.  It seems to me that the Tribunal approached the issue of policy DP5/96 in the correct way in considering the policy for itself and in reaching a conclusion reasonably open to it that the relevant considerations, including the factors relied on by the Secretary of State, amounted to exceptional circumstances sufficient to rebut the presumption in favour of allowing the Appellant to remain under the terms of the policy.  
20.	That brings me to the second way in which Mr Mahmood has advanced his case, which is a submission that the Tribunal's application of the policy itself was flawed.  He says that in paragraph 51, which I have quoted, the Tribunal focused on a limited number of factors.  He criticises the reference to "failure to attempt to regularise that status sooner" as not fitting within any of the specific factors identified in the policy itself, though that seems to me to fall fairly obviously within paragraph (a) of the policy.  He submits that the Tribunal did not carry out the necessary balancing exercise in application of the policy.  I disagree.  The Tribunal was plainly engaged here in a balancing of the relevant considerations; and it viewed those picked out in paragraph 51, considered in the overall context, as amounting to exceptional circumstances sufficient to rebut the presumption.  As I have indicated, that was, in my judgment, a reasonable conclusion.  
21.	I move to the second of the main issues, which relates to children and delay.  Mr Mahmood submits that once the Court of Appeal had remitted the case in April 2010, it ought to have been heard within a reasonable time, and the fact that it took over two years before it was heard resulted in unfairness, in particular because the Appellant's son (though not the daughter) was under 18 years of age at the date of the Court of Appeal decision but was over 18 years old by the time of the hearing before the Tribunal.  The significance of that is said to rest in various authorities relating to the treatment of the position of children.  Mr Mahmood points out that the Article 8 rights of children fall to be taken into account in considering the overall position under Article 8 in a case of this sort: see Beoku‑Betts [2009] 1 AC 115.  He points out that the welfare of children needs to be promoted and safeguarded pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009.  He also points to what was said in ZH (Tanzania) [2011] 2 AC 116 about the best interests of children being a primary consideration.  All of that is very well‑known.  
22.	Mr Mahmood submits that unfairness arose in this case because of the delay, in that by the date of the decision the son's best interests and welfare no longer fell to be taken into consideration by the Tribunal.  He says that what occurred amounted to the Tribunal sidestepping the positive obligation to promote and safeguard the welfare of the son.  He submits that the consequences of the delay were something that should have been taken into account as a relevant factor in the Tribunal's reasoning.  
23.	This too appears to be a point not taken before the Tribunal itself and again I deal with it only out of an abundance of caution, recognising that it is probably not open to Mr Mahmood at all.  I simply do not understand, let alone accept, the argument.  The Tribunal was required to consider the Article 8 rights of the Applicant and his family as at the date of the hearing, which is exactly what the Tribunal did at considerable length.  It had been accepted on behalf of the Secretary of State that although the children were now young adults, there was a continued dependency on the Appellant and his wife and there continued to be family life within Article 8.  All this was taken into account.  Nothing was sidestepped.  There was no failure to take a relevant factor into account.  
24.	Mr Mahmood submitted that looking at the issues of delay and the position of the children cumulatively, there can be seen to be a fundamental flaw in the Tribunal's approach.  In my judgment, as I have indicated, the points have no force individually.  They gain no greater force when considered in combination.  
25.	I would add that in one respect the delay was relied on before the Tribunal as working in the Appellant's favour, in that it increased the lapse of time since the offence of rape.  A key part of the Appellant's case before the Tribunal was that it could not be proportionate to deport him now for an offence committed so long ago, especially because he had not offended in the meantime.  The Tribunal, however, dealt robustly with that argument, pointing out that the weight to be attached to it must be considered in the light of the fact that the Appellant had in fact offended in the meantime; that is to say the offences that led to his identification as the perpetrator of the rape.  He had been assessed as presenting a risk as recently as 2008.  He had been illegally in the United Kingdom throughout.  He was still trading in his market business.  As regards risk, the Tribunal was concerned that the Appellant had tried to ignore and escape responsibility for his actions between 1988 and when the positive DNA match was obtained in 2006.  It observed, in my judgment very pertinently, that there was a strong argument that the element of deterrence carried more weight in this case as it would demonstrate that a person should not be rewarded for effectively going to ground and believing they had got away with it for a substantial period of time.  
26.	That also links with the point raised by Sir Stanley Burnton in the course of argument that, in reality, the Appellant had only himself to blame for the overall lapse of time in this case because, rather than face up to his offending at the time when he committed it, he went to ground for so long, got married and had children before he was finally identified as the perpetrator of the rape and the inevitable deportation decision was taken.  
27.	At this point in his submissions, Mr Mahmood sought to advance what turned out, upon analysis, to be an irrationality challenge in relation to the general exercise undertaken by the Tribunal in carrying out the Article 8 balance by reference to relevant factors, in particular those identified in Üner v The Netherlands [2007] 45 EHHR 14 (on the basis of which the Tribunal directed itself at paragraph 111).  It was apparent that permission to appeal had not been granted on such a ground, which had not been raised directly or even indirectly in the renewal statement on the basis of which permission was granted.  In those circumstances, I need say no more about the way in which Mr Mahmood began to develop his case in relation to that point.  
28.	I can move to the final of the three main points that he raised, which concerns the relationship between what the Tribunal said about paragraph 364 of the Immigration Rules and the position under cases of automatic deportation pursuant to statutory provisions to which I will come in a moment.  
29.	The way which the matter was addressed in the renewal statement, and part of the way in which I understood Mr Mahmood still to put his case, was that the Tribunal erroneously had regard to the more stringent approach towards the public interest in deportation in automatic deportation cases than is applicable under paragraph 364 of the Immigration Rules.  
30.	At the relevant time paragraph 364 read as follows:
"Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation.  The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport.  The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects..." 
31.	The regime of automatic deportation as introduced by section 32 of the UK Borders Act 2007 is a strict non‑discretionary regime for the deportation of foreign criminals, that is persons who are not British citizens and are convicted of a serious offence.  The statute provides that for the purpose of section 3(5)(a) of the Immigration Act 1971 the deportation of a foreign criminal is conducive to the public good and that, unless defined exceptions apply, the Secretary of State must make a deportation order in respect of a foreign criminal.  
32.	The key point about the automatic deportation regime for present purposes is that the Parliamentary endorsement of the policy of deporting foreign criminals increases the weight to be attached to the public interest in deportation when carrying out the Article 8 balancing exercise.  That was the position found to be the case in SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, in the judgment of Laws LJ at paragraphs 48 to 55.  Laws LJ observed at paragraph 48 that insufficient attention had been paid in Article 8 cases to the weight to be attached. in virtue of its origin in primary legislation, to the policy of deporting criminals.  At paragraph 54, he said:
"The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected.  Such a result could in my judgment only be justified by a very strong claim indeed." 
33.	In the present case, it is plain that the Tribunal had well in mind that it was dealing with a case under paragraph 364 of the Immigration Rules, not with an automatic deportation case.  For example, at the very beginning of the section on the law at paragraph 33 of the determination it said that this was a conducive deportation appeal.  It set out the guidance, referring in terms to the approach in such a case and, in particular, under paragraph 364.  That guidance was to the effect that the Tribunal should first confirm that the Appellant was liable to deportation.  It should then consider whether deportation would be in breach of the European Convention on Human Rights or the Refugee Convention and, if not, it should consider paragraph 364 and, in particular, whether there were exceptional circumstances outweighing the presumption that the public interest requires deportation.  
34.	That is precisely the approach that the Tribunal then adopted.  It was not disputed that the Appellant was liable to deportation.  The Tribunal examined the case under Article 8 exhaustively.  Having found that deportation would not be in breach of Article 8, it moved on finally at paragraphs 176 and following of the determination to consider paragraph 364 itself.  
35.	In his renewal statement, Mr Mahmood relies, however, on the fact that the Tribunal said at paragraph 76 of the determination that it had been assisted in relation to the public interest element of deportation proceedings by the case of Masih [2012] UKUT 00046 (IAC) in which the Tribunal set out the basic principles to be derived from the authorities on the public interest side of the balancing exercise.  I quote those principles from the extract at paragraph 76 of the present Tribunal's determination:
"1. In a case of automatic deportation, a full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place.
2.  Deportation of foreign criminals expresses society's condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.  
3.  The starting point for assessing the facts of the offence of which an individual has been convicted and their effect on others or the public as a whole must be taken by the sentencing judge.  
4.  The appeal has to be dealt with on the basis of the situation at the date of the hearing.  
5.  A full account should also be taken of any developments since sentence was passed..."
36.	Mr Mahmood's point appears to be that Masih was a case of automatic deportation and that the first of the basic principles set out with regard to the strong public interest in removing foreign criminals started with the words "in a case of automatic deportation".  It appears to be submitted that by applying those principles the Tribunal applied a stricter test than was appropriate for a discretionary deportation case to which paragraph 364 of the Immigration Rules applied.  
37.	I do not accept that the Tribunal's reference to the principles set out in Masih caused it to give undue weight to the public interest in deportation.  Nothing in that list of principles is inappropriate in the context of a discretionary deportation.  Nothing was said in Masih itself or by the Tribunal in the determination in the present case about giving greater weight to the public interest because the policy of deportation has its source in primary legislation.  In making the point in SS (Nigeria) about the weight to be attached to that consideration, Laws LJ said that insufficient attention had been paid to the point in previous cases.  Although he did not refer in that connection to Masih, I note that Masih did predate SS (Nigeria) by a significant period.  
38.	Most importantly, however, I see nothing in the Tribunal's detailed consideration of the Article 8 balancing exercise to suggest that it was misled into applying too strict a test as to the weight to be placed on the public interest in deportation.  Its analysis was perfectly appropriate for a case of discretionary deportation and it cited numerous cases that were not automatic deportation cases.  
39.	In submissions today, Mr Mahmood has raised a further point by way of criticism of the Tribunal's determination, in particular in relation to the balancing exercise carried out under paragraph 364 itself.  That exercise was engaged in at paragraphs 176 to 179 of the determination.  An aspect of the criticism is that there was a need to consider policy DP5/96 in considering the balance in paragraph 364, but a more general complaint is also made about the balancing exercise.  
40.	This point, as it seems to me, is again one not covered by the grounds in the written renewal statement and is one not open to Mr Mahmood before this court.  But in any event, since the Tribunal was entitled to find, as it did, that there were exceptional circumstances to displace the presumption in policy DP5/96, I cannot see how reference to that policy can be of any assistance to the Appellant in the context of paragraph 364 of the Immigration Rules.  
41.	I am also satisfied that the Tribunal imported its Article 8 analysis into its consideration of the balancing exercise under paragraph 364 and that, although it expressed its reasons briefly in dealing with that paragraph, it left nothing material out of account and did not apply too high a standard.  
42.	For all those reasons, I am satisfied that there is no substance in this appeal and I would dismiss it.
43.	SIR STANLEY BURNTON:  I entirely agree.  I would add that it seems to me that there is a further reason why the first point made by Mr Mahmood is not open to the Appellant.  His deportation was considered by the Court of Appeal, as Richards LJ has referred to, in 2010 in the judgment the neutral citation number of which is [2010] EWCA Civ 388.  
44.	His ground of appeal was that the Secretary of State and the Upper Tribunal had failed to consider and to apply policy DP5/96.  The Court of Appeal found that the Secretary of State and the Upper Tribunal both should have applied that policy but failed to do so.  As sought by the Appellant, the Court of Appeal remitted the case to the Upper Tribunal.  
45.	It would not have done so if it had considered that fairness required remission to the Secretary of State.  Indeed, it was not asked to do so.  It would be entirely inconsistent with the Court of Appeal decision and the order it made for this court to have come to the conclusion that the Upper Tribunal, having been required by the Court of Appeal to consider this policy, should have remitted the matter for fresh decision by the Secretary of State.  
46.	In any event, I agree with my Lord that there is nothing in the point.
47.	THE CHANCELLOR OF THE HIGH COURT:  I agree with both judgments.