United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005128
	First-tier Tribunal No: HU /58688/2023 LH/03005/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 14 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE LODATO

DEPUTY UPPER TRIBUNAL JUDGE RUTH

 

Between

 

TREVOR LLOYD PRICE

(NO ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Wilford of Counsel, instructed by KBP Law LLP.

For the Respondent: Ms Ahmed, Senior Home Office Presenting Officer.

 

Heard at Field House on 30 January 2025

DECISION AND REASONS

 

Introduction

 

1.              The appellant appeals with permission against the decision of First-tier Tribunal Judge Brannan ('the judge'), dated 9 August 2024, to dismiss the appellant's appeal against the refusal of the respondent to revoke a deportation order on human rights grounds.

 

Background

 

2.              The history of the appeal and of the appellant's criminality is not in dispute between the parties and is summarised by the judge between paragraphs [8] - [13] of the decision. In essence, having entered with leave in 1999, he subsequently remained without permission. On 21 August 2006 he was convicted of two offences of attempting to obtain a passport by deception and a third offence of handling a stolen birth certificate. He received a total sentence of nine months' imprisonment, with no separate sentence for the offence of handling the stolen birth certificate. He was deported from the UK on 20 June 2008 after a deportation order had been signed against him on 20 May 2008.

 

3.              On 28 August 2012, the appellant made an application to revoke the deportation order and the respondent's refusal to do so was initially successfully appealed to the First-tier Tribunal. That decision was the set aside by the Upper Tribunal in a decision promulgated on 15 April 2015 ('the 2015 UT decision'), dismissing the appellant's appeal.

 

4.              The appellant then made an application on 4 March 2020 for entry clearance, and this was treated by the respondent as an application to revoke the deportation order. The respondent refused to do so on 6 June 2023.

 

Appeal to the First-tier Tribunal

 

5.              The appellant appealed against the refusal to revoke his deportation order by reference to Article 8 of the European Convention on Human Rights and his family life with his British Citizen partner. The appeal was heard by the judge on 5 August 2024 and dismissed on 9 August 2024.

 

6.              A key question was whether the appellant was a foreign criminal as defined in section 117D(2)(c)(ii) of the Nationality, Immigration and Asylum Act 2002 ('NIAA'), on the basis he had been convicted of an offence that has caused serious harm. There was no dispute between the parties that the appellant had been sentenced to a period of less than 12 months' imprisonment and was not a persistent offender.

 

7.              In the context of the 2015 UT decision and the guidance in Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka *[2002] UKIAT 00702, the judge addressed his mind to the judgement of the Court of Appeal in Mahmood, R(on the application of) v Upper Tribunal (IAC) [2020] Q.B. 113. At paragraphs [42] and [43] of his decision, the judge concluded that although the appellant's offences had not caused actual harm to an individual, they had caused serious social harm. The judge said this at [43]:

 

" Looking at social harm, in the circumstances, I consider myself bound by the decision of Judge Conway. Although his finding is not totally clear, he considered the failure to consider the social harm of the Appellant's offending material to the error of law of the First-tier Tribunal Judge. Building on Judge Conway's starting point, and applying the current law, I find the seriousness of the Appellant's offence is greater than a thief stealing a single item of low value. The Appellant offended twice. The act of lying in order to obtain a passport undermines the integrity of the immigration system and that used for identifying British citizens. It goes to the core of the trust between citizens that is vital to the economic wellbeing of our society. The Appellant is therefore a foreign criminal [...] "

 

8.              That led the judge to conclude that the appellant was a foreign criminal as defined in section 117D(2)(c)(ii) of the NIAA. He then went on to find that maintenance of the deportation order would not be unduly harsh and that there were no very compelling circumstances in the case.

 

 

 

Appeal to the Upper Tribunal

 

9.              The appellant applied for permission to appeal in reliance on one key ground. It was argued the judge had failed properly to apply the principles established in Mahmood and had not identified what serious harm had been caused by the specific individual offences, also failing to grapple with the observation of Simon LJ in Mahmood that "where there is a conviction for a serious attempt offence, it is likely the sentence will be more than 12 months."

 

10.          Furthermore, it was submitted the judge had misapplied the principles in Devaseelan and had wrongly treated himself as bound by the 2015 UT decision in relation to the question of serious harm.

 

11.          In a decision dated 5 November 2024, First-tier Tribunal Judge Gumsley granted permission for all grounds to be argued. He took the view it was at least arguable the judge had erred in applying the principles in Mahmood and Devaseelan.

 

12.          At the error of law hearing, we heard oral submissions from both parties. We address any submissions of significance in the discussion section below.

 

Discussion

 

The Devaseelan Point

 

13.          We turn our minds firstly to the Devaseelan point, and whether the judge has wrongly treated himself as bound to follow the 2015 UT decision. We consider this can be dealt with relatively briefly.

 

14.          The principles in Devaseelan are well established and uncontroversial. As reiterated in SSHD v BK (Afghanistan) [2019] EWCA Civ 1358, an earlier decision of the tribunal is the starting point and [32] " the authoritative assessment of the appellant's status at the time it was made." It does not serve to bind a later tribunal.

 

15.          The appellant argues that because the judge said, at paragraph 43 of his decision, " I consider myself bound by the decision of Judge Conway", promulgated before the judgement in Mahmood, he had either elevated the 2015 UT decision above Court of Appeal authority or had obscured the principles established therein. We do not accept that argument.

 

16.          Although the turn of phrase may be unfortunate, if taken out of context and in isolation, it must be read within the paragraph as a whole. Later in paragraph 43 the judge explicitly states: " Building on [the 2015 UT decision] 's starting point [...]"

 

17.          That the judge, in fact, treated the 2015 UT decision as his starting point and did not wrongly bind himself to its findings or elevate it above the authority of Mahmood, is also clear both from his consideration of the decision and of Mahmood in the previous paragraphs. This includes his discussion between paragraphs [40] and [42], where he does depart from the 2015 UT decision's conclusions on a number of issues, and in his extensive consideration of the principles established in Mahmood. These were set out in paragraph [37] and the judge quite deliberately uses an example and comparator drawn from paragraph [39] of the judgement in Mahmood in paragraph [43] of his decision.

 

18.          In our judgement, it is entirely clear that when the judge said he considered himself "bound" by the 2015 UT decision, he was expressing the view that the situation had not substantially moved on from the findings made at that time, which he treated as his starting point, but with which he went on to agree, in the context of the case before him in 2024.

 

A Foreign Criminal - Serious harm?

 

19.          Section 117D(2) of the NIAA is in the following terms:

 

(2)  In this Part, "foreign criminal" means a person-”

(a)  who is not a British citizen,

(b)  who has been convicted in the United Kingdom of an offence, and

(c)  who-”

(i)  has been sentenced to a period of imprisonment of at least 12 months,

(ii)  has been convicted of an offence that has caused serious harm, or

(iii)  is a persistent offender.

 

20.          The key issue in this appeal is whether the judge materially erred in law in concluding the appellant was a foreign criminal, because he had been convicted of an offence that had caused serious harm as set out in section 117D(2)(c)(ii) of the NIAA. Key authorities in deciding that question include Mahmood and Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350.

 

21.          In Wilson the Upper Tribunal concluded, at paragraph [53(1)-(2)]:

 

" Whether P's offence is "an offence that has caused serious harm" within section 117D(2)(c)(ii) is a matter for the judge to decide, in all the circumstances, whenever Part 5A falls to be applied.

Provided that the judge has considered all relevant factors bearing on that question; has not had regard to irrelevant factors; and has not reached a perverse decision, there will be no error of law in the judge's conclusion, which, accordingly, cannot be disturbed on appeal."

22.          At paragraph [53(3)] of Wilson the Upper Tribunal also concluded that the view of the Secretary of State as to seriousness is a starting point and that sentencing remarks will often contain valuable information about this question. Also, serious harm need not be limited to an individual and can involve economic harm, although its contribution to a widespread problem is not sufficient and there must be evidence of the offence actually causing serious harm.

 

23.          In that context, we also note the views of the Court of Appeal in Mahmood, at paragraph [41]:

 

" Some crimes, for example, supplying Class A drugs, money laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm..."

 

24.          In paragraph [42] of his decision the judge explicitly accepted the appellant's actions did not do any actual harm to any individual and considered the question of social harm. He set out what he regarded as the serious social harm done by the appellant's offending.

25.          He states, at paragraph [43], drawing on a comparator used in the discussion at paragraph [39] of Mahmood:

 

" I find the seriousness of the appellant's offence is greater than a thief stealing a single item of low value. The appellant offended twice. The act of lying in order to obtain a passport undermines the integrity of the immigration system and that used for identifying British citizens. It goes to the core of the trust between citizens that is vital to the economic well-being of our society."

 

26.          The appellant argues that this fails to identify any serious harm caused by the actual offence and is a misapplication of the principles in Mahmood. The respondent argues the appellant is simply disagreeing with conclusions made by the judge, which were properly open to him. We agree with the respondent.

 

27.          It is instructive to consider the view taken by the sentencing judge and the Secretary of State. At the inner London Crown Court on 11 October 2006, His Honour Judge Grobel had this to say about the appellant's offending:

"offences involving passports are regarded as serious, they are threats to the security of the country where people attempt to obtain false passports."

28.          In the refusal letter of 6 June 2023, the Secretary of State expressed her view as follows:

 

"Immigration crime is not victimless. It defrauds the taxpayer and takes advantage of some of society's most vulnerable people. Illegal working has a serious impact on communities, undermining legitimate business and taking jobs from those who are genuinely allowed to work. Illegal migration also puts pressure on the public purse.

 

Furthermore, circumventing normal immigration controls can also hamper authorities' ability to detect criminals, terrorists and others who may pose significant harm to the United Kingdom [...]

 

A document like a passport has complete integrity. It shows who you are, and to have a false one in these circumstances is a very serious matter. The use of such methods strikes at the heart of immigration controls and is regarded as extremely serious in its own right. The Secretary of the State is of the opinion that your client sought to make a mockery of the UK's immigration controls, as well as showing little regard for its purpose. The courts have repeatedly emphasised that the abuse of the passport system must be considered a serious offence and for that reason your client was given an immediate custodial sentence. It is maintained that in light of the seriousness of these offences your client's exclusion is justified."

 

29.          While we note the views of Simon LJ in Mahmood in relation to the likelihood that serious attempt offences would attract a sentence of at least 12 months, he was not laying down a hard and fast rule. In this case the judge concluded that serious harm had been caused by the dishonesty of the appellant on two occasions, in order to obtain passports fraudulently. He was plainly fully aware of the fact that the appellant did not actually obtain either of the two passports, but nevertheless took the view serious societal harm had taken place.

 

30.          The question of whether the appellant had been convicted of an offence that had caused serious harm was a matter for the judge. In the context of the sentencing remarks and the views of the respondent, it cannot be said that his decision that the appellant's dishonesty, in order to obtain fraudulent passports, amounted to serious societal harm was perverse or outside the range of decisions reasonably open to him.

 

31.          In our judgement, there is no error of law in the judge's decision, and it shall stand.

Notice of Decision

 

We find that the decision of Judge Brannan did not contain an error of law. We dismiss the appeal brought by the appellant. The original decision stands.

 

Evan Ruth

 

Evan Ruth

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

4 February 2025