Neutral Citation Number: [2018] EWCA Civ 316
Case No: C5/2015/1851
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM
Upper Tribunal Judge Martin
DA002772014
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/03/2018
Before:

LORD JUSTICE McCOMBE
THE SENIOR PRESIDENT
and
LADY JUSTICE ASPLIN
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Between:

	The Secretary of State for the Home Department	Appellant	
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	OP (Jamaica)	Respondent	

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Mrs Carine Patry (instructed by Government Legal Department) for the Appellant
Mr Darryl Balroop (instructed by Reece Thomas Watson) for the Respondent

Hearing date: 14 February 2018
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Judgment Approved
The Senior President: 
1.	This is an appeal by the Secretary of State (SSHD) against a determination of the Upper Tribunal (UT) promulgated on 27 February 2015.  By that determination, the UT upheld the decision of the First-tier Tribunal (FtT) made on 1 December 2014.  The respondent, who has the benefit of an anonymity direction, is a convicted criminal, who is the subject of a deportation order.  I shall call him ‘OP’.  The FtT allowed OP’s appeal against deportation on article 8 grounds, concluding that his case was sufficiently strong and compelling as to prevail over the public interest in his deportation.  The UT upheld that decision by finding that there had been no material error of law in the FtT’s determination.
2.	The factual summary can be taken from the judgment of the FtT, the Secretary of State having confirmed that the facts as found are not in issue.
3.	OP is a national of Jamaica born in January 1985.  He arrived in the UK on 13 December 2002 as a visitor.  He subsequently extended his leave to remain by joining the British Army.  He was discharged from the army on 25 May 2005.  On 26 July 2007 he applied for naturalisation as a British citizen but this application was refused.  He applied for indefinite leave to remain on 11 February 2008 but this application was also refused in a decision made on 2 December 2009.
4.	OP did not leave the UK and on 15 February 2010 he made a further application for leave to remain.  He was by then in a relationship with a British citizen who is the mother of their two children who are also British citizens.  OP’s application was refused but his subsequent appeal was allowed by the Tribunal on the basis that it was satisfied that OP had established private and family life in the UK.
5.	On 15 April 2012 OP was involved in a robbery.  On 13 November 2012, following a trial, OP was convicted of robbery and sentenced to 4 years’ imprisonment.  While these matters were ongoing OP had a further child who was born to a woman with whom OP has not continued a relationship.
6.	OP was released on 23 September 2014.  On release he returned to live with his partner and their two daughters.  He also started to have contact with his son.
7.	In a decision of 3 June 2014 the Secretary of State applied the automatic deportation provisions in section 32(5) of the UK Borders Act 2007 and considered that none of the exceptions in section 33 of that Act applied.  The decision was accompanied by a deportation order.
8.	OP appealed to the FtT on 24 June 2014 and the FtT heard his appeal on 10 November 2014.  On 1 December 2014 the FtT allowed the appeal holding that there were very compelling reasons which outweighed the weight to be attached to the public interest in deportation.  The Secretary of State obtained permission to appeal to the UT.
The statutory scheme:
9.	Section 32 of the 2007 Act provides for the automatic deportation of foreign criminals.  A foreign criminal is defined as a person who is not a British citizen and who is convicted in the UK of an offence for which he is sentenced to at least 12 months imprisonment.  OP falls within that description.  Section 32(4) of the Act also provides that the deportation of a foreign criminal is conducive to the public good for the purpose of section 3(5)(a) of the Immigration Act 1971.
10.	The exceptions to the automatic deportation regime are contained in section 33 of the Act.  Section 33(2) provides exemptions to deportation where that would breach a person's (ECHR) Convention rights or the United Kingdom's obligations under the Refugee Convention. 
11.	Where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person's rights under article 8 ECHR, Part 5A of the Nationality, Immigration and Asylum Act 2002 ['the 2002 Act'] applies.  The relevant part of section 117C of the 2002 Act provides:
“(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal ("C") who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where – 
…
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.”
12.	There are also applicable Immigration Rules which were made under section 3(2) of the Immigration Act 1971.  The relevant Immigration Rules concerning deportation and article 8 ECHR are paragraphs A398 to 399A. Paragraph A398 provides that: 
“These rules apply where:
(a) a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom's obligations under Article 8 of the Human Rights Convention;
(b) a foreign criminal applies for a deportation order made against him to be revoked."
13.	Paragraph 398 provides that: 
“Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or
(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, 
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A."
14.	Paragraph 399 provides that:
“This paragraph applies where paragraph 398(b) and (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
	(i) the child is a British citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case 
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; […]”
15.	Paragraph 399A of the Rules concerns integration with the UK and obstacles to integration in the country to which it is proposed he is deported.  On the facts of this case the Immigration Rules add nothing to the statutory provisions.
16.	There is no issue between the parties about how a tribunal should apply these statutory provisions.  The authoritative interpretation was comprehensively described in NA (Pakistan) v Secretary of State for the Home Department and Others [2016] EWCA Civ 662 in a judgment of the court which at part 3 and from paragraphs 11 to 40, inclusive, recites the principles.
17.	There is no substitute for reading the entirety of part 3 of that judgment.  I shall only extract such matters as are relevant to the tribunal’s decision on the facts of this case.  The interpretation of the phrase “very compelling circumstances, over and above those described in Exceptions 1 and 2” begins at [28] of WA.  The important questions for this appeal are asked and answered at [29, [30] and [37] as follows:
A foreign offender who has to demonstrate very compelling circumstances over and above those described in the exceptions is not disentitled from seeking to rely on (factual) matters which fall within the scope of exceptions 1 and 2.  A person in that position is entitled to rely both on circumstances that fall within and outside the exceptions in order to establish that his article 8 claim is sufficiently strong.
18.	Furthermore, a person whose circumstances fall exclusively within the exceptions might still be able to demonstrate very compelling circumstances if the factual matters which fall within the exceptions go well beyond what is necessary to make out a bare case under the exceptions i.e. if the matters relied upon are especially compelling.
19.	A tribunal that is considering the circumstances of a serious offender should first of all consider whether any of those circumstances are of the kind described in the exceptions.  It should then consider whether any of the factors identified are of such force, whether by themselves, or taken in conjunction with any other relevant factors not covered by the exceptions to satisfy the ‘very compelling’ test.
The Appeal:
20.	The grounds of appeal in this case are limited to the consideration of whether the correct legal test was applied by the FtT and hence whether the UT was wrong to have failed to identify an error of law in the evaluative judgment undertaken by the FtT.  It is common ground that the facts are not in issue and the law was correctly identified by the FtT.
21.	The FtT identified the right question to ask and answered the question in the affirmative.  The Secretary of State complains that what was missing was any sufficient reasoning to justify the conclusion that the findings of fact amounted to very compelling circumstances over and above those described in the exceptions.
22.	Given the care with which this court was taken through the findings of fact, it is appropriate to set them out:
a) There is a low risk of OP re-offending.  The robbery conviction and threatened deportation would act as a deterrent in the future.  The offending is, however, serious and the nature of the offence is such that the public interest is considerable.
b)	OP’s relationship with his son is in its infancy and so little weight is to be placed on this relationship.
c)	OP has a genuine, subsisting and loving relationship with his daughters, who are British citizens.  OP has financially supported his family and he has remained a crucial part of the family throughout his imprisonment.
d)	OP’s partner is more than usually reliant on OP for support, both emotionally and financially.  She is a British citizen and has lived in the UK since the age of 7.  She would be unlikely to cope with holding down a job and caring for the children without OP.
e)	It is in the interests of the children to remain with their mothers in the UK.  It is also generally in a child’s best interests to remain with both parents.  This is particularly relevant to OP’s daughters.  It is in the best interests of the children to remain with both their parents in the UK.
f)	OP’s daughters are British citizens and this is a strong indicator that their futures lie in this country.  The deportation would sever the family unit, as any visits to Jamaica would be limited by funds.
g)	OP has family in Jamaica and numerous useful qualifications and would be able to gain employment in Jamaica.
23.	It is interesting in that context to consider what the tribunal did not say.  Despite concluding that OP’s partner was dependent and would be unlikely to cope with both employment and child care without him, it did not go further.  The Secretary of State is right to point out that the finding was not that she would not be able to cope without him with the consequence that family life would be significantly undermined.
24.	The tribunal concluded that it was likely that she would have to give up employment to care for the children with the consequence that she would have recourse to public funds.  That had the additional implication that any overseas contact with OP would have to be funded by him.  The tribunal did not conclude that as a consequence direct contact would cease.
25.	The FtT did not ask itself the questions that I have identified from NA the answers to which would have demonstrated the exercise of judgment by the FtT.  In the absence of any additional reasoning, the most that can be said is that the findings of fact that were relevant to the exceptions were not especially compelling.  They were incidents of the interference with family life that were similar in nature to the effect of OP’s incarceration.  Likewise, no factors outside the exceptions were identified as being sufficient, when taken together with those relevant to the exceptions, to be regarded as very compelling.  
26.      The absence of the necessary reasoning is in my judgment fatal.  As Jackson LJ said in NA at [33] and [34]:
		“The best interests of children certainly carry great weight, as identified by Lord Kerr in HH v Deputy Prosecutor of the Italian Republic [2012] UKSC 25 [2013] 1 AC 338 at [145].  Nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children.  The desirability of children being with both parents is a commonplace of family life.  That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals.”
	“In relation to a serious offender, it will often be sensible first to see whether his case involves circumstances of the kind described in Exceptions 1 and 2, both because the circumstances so described set out particularly significant factors bearing upon respect for private life (Exception 1) and respect for family life (Exception 2) and because that may provide a helpful basis on which an assessment can be made whether there are “very compelling circumstances, over and above those described in Exceptions 1 and 2” as is required under section …..”
27.	It is not necessary in that circumstance to take the Secretary of State’s other grounds of appeal any further.  The flaw identified is sufficient to amount to an error of law.  The UT failed to identify those errors and accordingly the determinations of the FtT and the UT must be set aside.
28.	It is agreed that in the event that the court concludes that the appeal should be allowed and the orders set aside, the matter should be remitted to the FtT for a re-hearing.
Lady Justice Asplin:
29.	I agree.
Lord Justice McCombe:
30.	I also agree.