CW (Jamaica) v Secretary of State for the Home Department [2013] EWCA Civ 915

[2013] EWCA Civ 915

Case No C5/2012/1513

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER)

(THE PRESIDENT (BLAKE J) & UPPER TRIBUNAL JUDGE JORDAN)

DA008602009

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday 23 rd July 2013

Before

LORD JUSTICE PATTEN

LORD JUSTICE McCOMBE

LORD JUSTICE BEATSON

Between

CW (Jamaica)Appellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

(Transcript of the Handed Down Judgment of

WordWave International Limited

A Merrill Communications Company

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Richard Singer and Adeleke Adeniyi (instructed by Messrs Aa & Co) for Appellant

Mr Neil Sheldon (instructed by the Treasury Solicitors) for Respondent

Judgment

Lord Justice McCombe:

[1]This is an appeal by CW, a Jamaican national (“the Appellant”), from a determination of the Upper Tribunal (Asylum and Immigration Chamber), (The President (Blake J) and Upper Tribunal Judge Jordan) of 7 February 2012. By its determination, the Upper Tribunal dismissed the Appellant’s appeal from a decision of a panel of the Asylum and Immigration Tribunal (as it was then called) of 8 February 2010, which in turn had dismissed the Appellant’s appeal against a deportation order made against him on 23 November 2009 by the Secretary of State (“the Respondent”). Permission to appeal to this court was refused by the Upper Tribunal on 24 May 2012, but was granted by Elias LJ on 28 November 2012. The procedural history of the case is somewhat more complicated than this and I return to it below.

(B) Outline Background Facts and Earlier Procedural History

[2]The Appellant was born on 12 May 1971 in Jamaica. He met his present wife (“JS”) in Jamaica in 1989. JS is now a UK citizen and her mother lives here. Two children were born to the Appellant and JS, in Jamaica, on 29 August 1991 and 15 September 1994 respectively. At all material times, the Appellant’s mother has also lived in the United Kingdom and in December 1996, seemingly at the mother’s behest, the Appellant and the second child joined her here, leaving the elder child and JS in Jamaica. They in turn re-joined the Appellant and younger child in the UK in December 1997. The Appellant had entered the country in 1996 as a visitor, with leave to enter until 2 June 1997.

[3]In May 1997, shortly before the expiry of the leave to enter as a visitor (and with JS still in Jamaica) the Appellant married another woman. On the strength of that marriage he sought indefinite leave to remain; he was granted instead only 12 months leave, expiring on 30 June 1998. He has had no lawful immigration status in this country since that date.

[4]In December 1998 and June 2007, JS (by then in the UK) gave birth to two further children whose father is the Appellant. In the meantime, on 26 October 2008, the Appellant’s application for further leave to remain, based on the 1997 marriage, was refused and his appeal (brought out of time) against that decision was dismissed, the Immigration Judge finding that his marriage was one of mere convenience. The marriage was subsequently dissolved on 19 September 1999.

[5]On 29 March 2003 the Appellant married JS, at a time when he did not have leave to remain and was, therefore, unlawfully in this country. On 17 May 2003, on the basis of his new marriage, he applied again for leave to remain. The application was ultimately refused, but only on 13 June 2007. We have no information as to why the delay occurred.

[6]In this period, the Appellant had begun to acquire a criminal record. In 1998, he committed theft and similar offences. In 2002, he was convicted of possession of cannabis. In 2005, he was convicted of having a bladed article in a public place. None of these offences attracted a custodial sentence. However, on 10 December 2007 in the Crown Court at Chelmsford he was convicted, after a contested trial, of possession of Class A drugs (cocaine) with intent to supply and was sentenced to 5 years imprisonment. As is often said in sentencing offenders of this character, the offence was described as involving “peddling prospective death” and the judge alluded to the need to mark the gravity of the conduct by an appropriately severe sentence in order to discourage it. The judge described the offence as “serious drug trafficking” and “not a one-off trade or transaction at the lowest level; far from it”.

[7]By virtue of that last conviction and sentence, the Appellant subsequently became liable to deportation pursuant to section 32 of the UK Borders Act 2007, to the provisions of which I will return. He was given notice to that effect on 9 November 2008. On 23 November 2009, the Respondent made a deportation order. The Appellant appealed against that decision, the appeal being dismissed by the decision of the panel to which we have already referred. His first appeal to the Upper Tribunal was dismissed (by Senior Immigration Judge Martin) on 16 June 2010. However, on 17 September 2010 he was granted permission to appeal to this court by Sir Richard Buxton and thereafter the present Respondent, who was of course Respondent to that appeal, agreed that there had been a material error of law below, that the appeal should be allowed and that the case should be remitted to the Upper Tribunal for further consideration. An order was made accordingly by Sullivan LJ on 23 February 2011. It was for the purpose of that reconsideration of the Appellant’s appeal to the Upper Tribunal that the case came before the President and Judge Jordan and was heard, together with two similar cases, on 7 July 2011. On 7 February 2012, the appeal was again dismissed (see

[2012] UKUT 00048

(C) The Upper Tribunal Decision

[8]The Appellant’s four children, born on the dates already mentioned, are now aged 21, 18, 14 and 6 respectively. They and their mother are UK citizens, having obtained that status on 7 July 2009. It was on the basis of the potential effect on the Appellant’s children’s private and family lives by the deportation of their father that Sir Richard Buxton gave leave to appeal to this court, ultimately leading, as I have described, to the case going back to the Upper Tribunal. In granting permission, Sir Richard wrote, “Ground 1. The only issue relates to the position of the children under article 8. The SIJ was entitled to hold that C, now aged 19 was not dependent upon deportation decisions in respect of her parents. However, on the facts presented it would appear that the position of the other children may not have been sufficiently considered…The reality is that if the mother decides to follow the applicant to Jamaica the two younger children and possibly also [the second eldest] will go with her. There are two further points. First, I have no doubt that the tribunals were entirely right in thinking that the applicant, taken on his own, was an obvious candidate for deportation. It does not follow, however, that his deportation cannot be stayed, however unmeritoriously, because of the impact on his family. Second, it is arguable that the tribunal should have considered the practical impact of the deportation decision on the right of abode of the children as British citizens…It is one thing to say that an adult can decide whether or not to exercise that right when her spouse is deported; perhaps another to assume that a child must forfeit that right as a result of a family decision following from a deportation order… ”

[9]Sir Richard’s order was made, perhaps percipient of the developments to come, a few months before the delivery of judgment by the Supreme Court in ZH (Tanzania) v SSHD

[2011] UKSC 4

. However, when the case came before that Tribunal in July 2011 that decision was known and the determination considered fully the law as it stood in the light of the decision. As the Tribunal noted, the question arising in ZH was that formulated by Baroness Hale of Richmond at the beginning of her judgment as follows:

“The over-arching issue in this case is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or more of their parents from this country. Within this, however, is a much more specific question in what circumstances is it permissible to remove or deport a non-citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave?”

[10]Having reviewed the law, in the light of the decision in ZH, the Upper Tribunal recited in full Sir Richard Buxton’s order, quoted above, and said, “It is on this basis that we approach his [i.e. the Appellant’s] case”. The Tribunal found as follows:

“125. Once again, his case rests principally on the impact upon the three children aged 17, 13 and 4. Similar considerations apply to this case as they apply in the case of Harrison. The children will not be required to leave the United Kingdom and we would not consider it reasonable for them to do so. Zambrano does not impact upon the appeal. His wife visited Jamaica for a few days in 2000 and 2006. None of the children has visited, save Y at a time when she was too young to remember. 126. Notwithstanding the obvious effect upon each of the children of not being able to live with their father, we consider that deportation is justified on the facts of this case. As in Mr Harrison’s case there is no evidence before us to conclude that the claimant’s presence is needed to prevent the children from being ill treated, their health or development being impaired, or their care other than safe and effective. Again visits to Jamaica and other forms of communication appear possible. We see no reason why all contact would be lost.”

That approach to the effect of the Appellant’s prospective deportation is not surprising in view of the Appellant’s own evidence, in paragraph 10 of his witness statement of 5 July 2011, which we were told was placed before the Upper Tribunal at the hearing two days later, where he said, “…I believe that my removal would lead to the permanent break up of my family as I do not expect my family to relocate to Jamaica in view of the insurmountable obstacles to relocation…” On the facts of this case, therefore, the effect of the deportation was not (as in ZH) that the Appellant’s children would also have to leave the UK. The Tribunal considered the interests of the children in that context. Further, of course, this case concerns a “foreign criminal” within the meaning of the UK Borders Act 2007, which ZH did not.

(D) The Arguments on the present appeal

[11]For the Appellant, Mr Singer argues two points, pursuant to the permission to appeal granted by Elias LJ. First, he submits that there was inadequate enquiry by the Upper Tribunal into the consequences for the children of the Appellant’s deportation. Secondly, he submits that the Respondent (and hence one assumes the Tribunals) paid inadequate regard to her Department’s own former policy relating to deportation where children were involved. That policy (DP5/96) was withdrawn in December 2008, before the deportation order in this case was made.

[12]It is convenient to address this second point first.

[13]DP5/96 was the policy under which it was generally considered to be inappropriate to remove or deport persons from the country in cases involving dependent children who had lived in this country for seven years or more. The policy was publicly withdrawn by a Ministerial Statement in December 2008, almost a year before the deportation order in this case. In support of the Appellant’s case, however, Mr Singer relies upon the fact that notice of liability to deportation was given shortly before the withdrawal of the policy. He relies upon transitional arrangements that were published at the same time, which he quotes in his skeleton argument as follows:

“There are likely to be existing cases where DP5/96 will continue to apply despite its withdrawal. These types of cases are: • current appeal cases where the policy has already been applied (before its withdrawal) and rejected by UKBA and the appeal is either still pending with the Asylum and Immigration Tribunal (AIT) or has been allowed; • appeal cases where the policy was not applied by UKBA (before its withdrawal) and where the AIT directs UKBA to consider DP5/96 in the context of an allowed appeal; • cases where UKBA are challenging an allowed appeal by either the AIT or an upper Court; • where UKBA have acknowledged in writing that they have received an application which relies on DP5/96; • enforcement cases where UKBA have initiated the process of considering DP5/96 prior to its withdrawal on 09 December 2008. Examples of such circumstances are where a caseworker has already considered DP5/96 prior to its withdrawal and has written to the individual and the representative requesting further information/evidence in relation to the child’s length of residence. Any information/evidence requested will need to be submitted within 28 days of the date of request, for the policy to continue to be applied to that case. The same factors contained within the withdrawn policy will still continue to apply when considering cases under DP5/96. From the 09 December 2008 consideration under Article 8 of the ECHR and the Immigration Rules will also be given to any outstanding further representations against removal which cite the withdrawn policy (for example pursuant to paragraph 353 of the Immigration Rules) which have not yet been considered.”

Mr Singer submits that this was a case in which the UKBA had initiated the process “of considering DP5/96 prior to its withdrawal” or, if it did not consider it, it should have done so. He also referred to a short passage in the judgment of Rix LJ in AF (Jamaica) v SSHD

[2009] EWCA Civ 240

at [21] as follows:

“Although the present type of case is not specifically mentioned in the transitional arrangements, understandably because we are not concerned at present with the Secretary of State’s application of the policy, the transitional arrangements are not in any event intended to be a comprehensive statement of the continuing relevance of the policy in extant cases. This is demonstrated by the language of the transitional arrangements itself: “there are likely to be existing cases where DP 5/96 will continue to apply despite its withdrawal”.”

[14]As Mr Sheldon for the Respondent points out in his skeleton argument, however, the Appellant’s case in the Tribunals never asserted that the deportation order was unlawful for failure to comply with the old policy. There is only a passing reference to it in the skeleton argument before the Upper Tribunal in a section dealing generally with the law relating to

Article 8 of the ECHR

, and, notwithstanding the fullness of the Upper Tribunal’s discussion of the law, no submission by the Appellant based upon the policy is recorded. Mr Singer did not suggest to us, if I have correctly understood his submissions, that the policy was at the centre of his argument before the Upper Tribunal.

[15]Mr Sheldon submits that, in any event, the point is now covered by the decision in SSHD v Rahman

[2011] EWCA Civ 814

. In that case, in July 2009, Mr Rahman made an application for indefinite leave to remain, i.e. after the withdrawal of the policy. He asserted, however, that the application should nonetheless be applied to his case. It was held that he had not known of the policy before its withdrawal and could not, therefore, show that he relied upon it in any way, quite apart from the question whether such reliance would have given rise to any legitimate expectation of entitlement under the policy: see the judgment of Stanley Burnton LJ at [43]. The court asked itself whether there was any unfairness, in Mr Rahman’s case, in the Secretary of State’s refusal to apply the transitional provisions and it held there was not. The transitional provisions applied to those whose cases were under consideration under the policy while it was in force. It did not apply to those who had not sought to regularise their status before the policy’s withdrawal: see Loc. Cit. at [44]. As Stanley Burnton LJ pointed out the policy could be seen as a tacit invitation to parents to lie low until their children had been here for seven years.

[16]We were referred by both counsel to the terms of the policy itself, quoted in slightly differing forms, first in the judgment of Rix LJ in AF at [15] and then by Stanley Burnton LJ in Rahman at [8]. Mr Singer was anxious that we should see a passage quoted by Rix LJ indicating the purpose of the instruction given as a result of the policy, in the following 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 continuance residence.”

Mr Singer submitted that this indicated that the Respondent was required to consider the policy in every enforcement case whether positively raised by the individual subject or not.

[17]Mr Sheldon showed us a fuller passage quoted by Stanley Burnton LJ as follows:

“Deportation in Cases where there are children with long residence: Policy Modification announced by the Under-Secretary for the Home department Mr O’Brien on 24 February1999 Whilst it is important that each individual case must be considered on its merits, there are specific factors which are likely to be of particular relevance when considering whether enforcement action should proceed or be initiated against parents who have children who have lengthy residence in the United Kingdom. For the purpose of proceeding with enforcement action in a case involving a child, the general presumption is that we would not normally proceed with enforcement action in cases where a child was born here and has lived continuously to the age of 7 or over, or where, having come to the UK at an early age, they have accumulated 7 years or more continuous residence. However, there may be circumstances in which it is considered that enforcement action is still appropriate despite the lengthy residence of the child, for example in cases where the parents have a particularly poor immigration history and have deliberately seriously delayed consideration of their case. In all cases the following factors are relevant in reaching a judgment on whether enforcement action should proceed: -the length of the parents residence without leave: whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground; -the age of the children -whether the children were conceived at a time when either of the parents had leave to remain -whether return to the parents’ country of origin would cause extreme hardship for the children or put their health seriously at risk; -whether either of the parents’ has a history of criminal behaviour or deception. It is important that full reasons are given making clear that each case is considered on its individual merits.”

[18]Mr Sheldon submitted that, even if the policy had been operative at the relevant time (which it was not), it is highly unlikely that, in view of its terms, the Appellant and his family would have benefited from it. Mr Sheldon pointed to this Appellant’s particularly poor immigration history, the conception of children when he and JS had no leave to remain, and the history of criminal behaviour. In such cases, even under the terms of the policy, Mr Sheldon submitted, there might have been circumstances in which enforcement action would still have been appropriate.

[19]In this case, the decision in issue was the decision to make the deportation order. That decision was taken nearly a year after the policy had been withdrawn and at no stage did this Appellant seek to regularise his status while the policy was in force. After expiry of his last leave to remain, obtained on the basis of a sham marriage, he was merely an “overstayer”, committing (save perhaps for his period of incarceration) a further criminal offence simply by virtue of his presence in the country.

[20]Mr Singer submitted that the policy was triggered in 2008 when notice was given to the Appellant that, because of his conviction, he was liable to deportation. I do not accept that proposition. It is clear from the later letter from the UK Border Agency of 15 October 2009, when the Respondent informed the Appellant the decision to make a deportation order that all that had occurred in 2008, while the policy was in force, was that the Appellant was notified of his liability to be deported and the Respondent invited the Appellant to state why he should not be deported. We were told that no representations had been received indicating that the policy was relied upon.

[21]In any event, I accept Mr Sheldon’s submission that the relevant date for determining the application of the policy was the date when the deportation order came to be made in November 2009. By then the policy was long revoked. In the circumstances, I do not see that it could have been incumbent upon the Upper Tribunal to have regard to the policy in considering the issue remitted to them following the orders of Sir Richard Buxton and Sullivan LJ. As the Tribunal stated at the beginning of its judgment, “The appeal was allowed by consent… to enable the Tribunal to give further consideration to the Article 8 claim”. The proper interests of the children were to be considered afresh and the old policy could not inform the Tribunal any further in the carrying out of that exercise. The interests of the Appellant’s children were fully protected by a proper application of Article 8.

[22]I turn to the more material ground of appeal, namely the argument that the Upper Tribunal failed adequately to enquire into the consequences for the Appellant’s children and failed accordingly to take account of their best interests as “a primary consideration” in the Appellant’s case.

[23]Mr Singer’s point is that, while the Tribunal decision dealt fully with the applicable law in a quite proper way, it failed sufficiently thereafter to address the very point which had been remitted to it to decide. He argues that the judgment deals with the question of the children’s best interests in an entirely “generic” way along with the cases of the other Appellants, without sufficient identification or articulation of what these children’s best interests were. He said that there was no clear expression by the Tribunal of the necessary balancing exercise of the public interest in the deportation of the Appellant as a foreign criminal on the one hand and the best interests of the children to remain in this country with their father and mother on the other.

[24]In my judgment, the three submissions advanced by Mr Sheldon effectively overcame the Appellant’s argument on this point. Mr Sheldon argued: first, that, on a proper reading of the decision, the Tribunal did treat the interests of the Appellant’s consideration as a primary consideration and duly conducted the exercise of balancing those interests against the public interest in the deportation of the Appellant; secondly, the Tribunal took proper account of the evidence lodged by the Appellant in support of his case; and thirdly, there was no obligation to conduct any more extensive fact finding enquiry beyond the evidence that had been presented.

[25]On the first point, in paragraph 1 of the decision the Tribunal identified its function as being to consider the impact of the decision in ZH in the three cases before it. In paragraph 18 the judges recited Sir Richard Buxton’s order in its material parts. Thirdly, in paragraph 25, the decision noted the error of law that had been identified in the earlier decisions in the Appellant’s case in failing to examine the interests of British national children as a primary consideration. Fourthly, from paragraph 47 onwards, the decision in ZH was fully analysed, ending with a distillation in paragraph 65 of the relevant principles stated (uncontroversially for the purposes of the present case) in the Upper Tribunal’s own subsequent decision in Omotunde (Best Interests)

[2011] UKUT 00247 (IAC)

. There then followed, fifthly, the important statement in paragraph 67 as follows:

“67. In re-making these decisions we give particular importance to the fact the children are British as a strong pointer to the fact that their future lies in the United Kingdom. If their fathers are removed each child will suffer the loss of the presence of a father from the household in which they now are growing up. We shall consider whether there is evidence that such an event would cause maltreatment, loss of safety or impairment of health or development.”

This led then to the resolution of the issue in the sections devoted to the Appellant’s case in paragraphs 123 to 128 of the decision, and in particular the conclusions as to the balance of competing interests in paragraphs 124 and 125, already quoted above.

[26]In agreement with Mr Sheldon’s second point, I note that this analysis properly accorded with the Appellant’s own evidence in his most recent witness statement, testifying to the love that the Appellant had for his children and the love that they had for him; that his relationship with the children would be materially damaged by separation; and that he did not expect the family to accompany him to Jamaica. None of this was controversial. The task of the Tribunal was to balance those facts against the rival public interest reflected by the deportation order, made pursuant to the Respondent’s statutory duty.

[27]I agree too with Mr Sheldon’s third point that there was no obligation upon the Tribunal to extend its forensic investigation by initiating itself further enquiries beyond the scope of the evidence. That point is clear from the more recent decision of this court in SS (Nigeria) v SSHD

[2013] EWCA Civ 550

where Laws LJ said that the circumstances in which the Tribunal should exercise an inquisitorial function of its own would be extremely rare (paragraph [35]). Mann J added to this, in paragraph [62] in these terms:

“In this appeal counsel for the appellant placed considerable emphasis on the need for the Tribunal to satisfy itself as to the interests of the child in such a way as suggested an inquisitorial procedure. I agree with Laws LJ that the circumstances in which the Tribunal will require further inquiries to be made, or evidence to be obtained, are likely to be extremely rare. In the vast majority of cases the Tribunal will expect the relevant interests of the child to be drawn to the attention of the decision-maker by the individual concerned. The decision-maker would then make such additional inquiries as might appear to him or her to be appropriate. The scope for the Tribunal to require, much less indulge in, further inquiries of its own seems to me to be extremely limited, almost to the extent that I find it hard to imagine when, or how, it could do so.”

Black LJ agreed with both judgments.

[28]In the present case, the evidence upon which the Tribunal had to conduct the balancing exercise was of its nature within a small compass and it was provided largely in the Appellant’s own statement. There was nothing else advanced by the Appellant as bearing upon the question. As Mr Sheldon submitted, there is nothing even now that the Appellant suggests should have been fed into the Tribunal’s assessment of the case which was not put before it.

[29]In conclusion, it seems to me that the Tribunal correctly identified the best interests of the children in not suffering the loss of the presence of the father from the household in which they were growing up. That was quite sufficient as an identification of where the best interests of the children lay. That “best interest” was as the Tribunal said itself “obvious” and it treated it, as required, as a primary consideration. However, that primary consideration was not the only consideration nor was it necessarily determinative. The Tribunal proceeded to weigh the other factors in the case and found that they outweighed the best interests of the children in being able to live with their father, the children not being required themselves to leave the United Kingdom, thus depriving them of the well-rehearsed benefits of being able to grow up in the country of their nationality.

[30]Mr Singer went on to criticise the Tribunal’s perceived amplification of its reasoning when it considered and rejected the Appellant’s application for permission to appeal to this court. In paragraphs 2 (iv) and 4 of that decision the Tribunal said this:

“2.(iv) There was no positive evidence that separation from father would cause the children harm to their development, but the case proceeded on the basis of the obvious hardship and disadvantage to children who grew up without the close presence of their father. ….. 4. On the basis of the facts above, the UT precisely addressed the issues that lead to the appeals being heard a third time: namely the impact of removal on the British citizen children and their welfare as a primary consideration. It reached the conclusion on the basis of the appellant’s poor immigration history (marriage of convenience, overstay and marriage with no leave), breaches of the criminal law on more than one occasion, the 2007 conviction for a very serious drug offence that it particularly imperils public safety that the best interests of the children in continuing to reside with their father were outweighed by the public interest in preventing crime whether by this appellant or others having regard to the deterrent effect, as was the case in Lee v SSHD.”

The reference to Lee v SSHD is, of course, to that decision of this court to be found with the neutral citation reference

[2011] EWCA Civ 348

[31]For my part, I consider that that further explanation of the decision is amply borne out by the passages of the decision itself already referred to above. Moreover, it is now well known that if one ground of a proposed appeal is that a judge has failed to give adequate reasons on a point, the judge should be given an opportunity to deal with the point before application for permission to appeal is sought, except perhaps where there is a danger of ex post facto rationalisation of the decision that has been made: English v Emery Embold & Strick Ltd.

[2002] EWCA Civ 605

. The decision on the permission application anticipated any such request for further reasons. I do not see any objection to the reasons so expressed in the later decision in this case which state again the process of the decision making that was followed in this case.

[32]In my judgment, that is sufficient to dispose of the appeal, notwithstanding the able manner in which Mr Singer presented the Appellant’s case. However, I think that it is desirable to mention the provisions of the UK Borders Act, pursuant to which the order was made and the importance of that fact as explained by the court in SS (supra).

[33]By section 32 of that Act a “foreign criminal” is a person who has received a sentence of imprisonment of at least 12 months after 1 August 2008 or was in custody pursuant to such a sentence and had not been served with a deportation order before then: see sections 32 (1) and 59 of the Act and the UK Borders Act 2007 (Commencement No. 3 and Transitional Provisions) Order 2008 paragraphs 2 and 3. The Appellant was, therefore, a foreign criminal for these purposes. Section 32(4) and (5) then provide this:

“(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c.77), the deportation of a foreign criminal is conducive to the public good. (5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”

Next, we come to section 33 which states:

“33 Exceptions (1) Section 32(4) and (5) – (a) do not apply where an exception in this section applies (subject to subsection (7) below), and (b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions). (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach- (a) a person’s Convention rights, or (b) the United Kingdom’s obligations under the Refugee Convention.”

Section 33(7) adds: ” “…section 32(4) applies despite the application of Exception 1…”.

[34]In considering these provisions in the SS (Nigeria) case (supra), Laws LJ considered extensively the law relating to the balance between Article 8 rights and the public interest in deporting foreign criminals, the latter being forcibly emphasised by the statutory provisions which I have just quoted. At paragraph [48] Laws LJ said this:

“….Where such potential deportees have raised claims under Article 8, seeking to resist deportation by relying on the interests of a child or children having Britsih citizenship, I think with respect that insufficient attention has been paid to the weight to be attached, in virtue of its origin in primary legislation, to the policy of deporting foreign criminals.”

At paragraph 54, the learned

Lord Justice added:

“I would draw particular attention to the provision contained in s.33(7): “section 32(4) applies despite the application of Exception 1…”, that is to say, a foreign criminal’s deportation remains conducive to the public good notwithstanding his successful reliance on Article 8. I said at paragraph 46 that while the authorities demonstrate that there is no rule of exceptionality for Article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail. 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.”

[35]Quite apart from the considerations that I have mentioned above, it is clear that in the present case, the Article 8 claim is far from being “very strong”. It is impossible to see how, therefore, those claims could outweigh the express declaration of the public interest in the deportation of a foreign criminal, such as this Appellant, as expressly stated in the statute.

(E) Conclusion

[36]For these reasons, I would dismiss this appeal.

Lord Justice Beatson:

[37]I agree.

Lord Justice Patten:

[38]I agree.