JT (Sri Lanka), R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 641

Case No C2/2015/3111[2016] EWCA Civ 641
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judge Gill)
Venue Royal Courts of JusticeDate Thursday, 7 April 2016
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE UNDERHILL
THE QUEEN ON THE APPLICATION OF JT (SRI LANKA) Applicant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms S Akinbolu (instructed by M & K Solicitors) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
J U D G M E N T
Between
JT (Sri Lanka), R (on the application of)AppellantSecretary of State for the Home DepartmentRespondent

LORD JUSTICE UNDERHILL:

[1]In view of the nature of this application I need only give the barest outline of the background. The applicant is a Sri Lankan national who entered the UK lawfully as the spouse of a British citizen in July 2007 and who was granted indefinite leave to remain on 14 September 2009. He has remained here ever since. He and his wife have a child, [A], who is a British citizen and was born on 28 April 2016 and so is now nearly 10. On 4 September 2013, he was sentenced to three and a half years' imprisonment for violent disorder. He had a prior history of other criminal offences. On 2 March 2015, the Secretary of State made a deportation order. She also certified, pursuant to section 94B of the Nationality, Immigration and Asylum Act 2002, that his removal to Sri Lanka pending any appeal against the order would not involve any breach of his rights under the European Convention on Human Rights – the relevant rights being, in practice, those of himself and his family under Article 8 of the Convention. The applicant filed an application for judicial review of that decision – that is to say, specifically of the certification decision – on 5 May 2015. Permission was refused on the papers on 11 June and at a hearing on 25 August, that hearing being before Upper Tribunal Judge Gill. The applicant seeks permission to appeal against that decision.[2]The application for permission came before me on the papers on 24 March. I refused permission. The application is now renewed by Ms Sandra Akinbolu of counsel. She has confirmed in her helpful advocate's statement that two grounds of appeal are being pursued. The first is that the Secretary of State erred in law in reaching his decision for the reasons identified by this court in R (on the application of Kiarie) v The Secretary of State for the Home Department and R (on the application of Byndloss) v The Secretary of State for the Home Department [2015] EWCA Civ 1020: see in particular paragraph 73(ii) of the judgment of Richards LJ. The Upper Tribunal decision was made a couple of months before the decision in Kiarie and Byndloss was handed down. The error can be summarised as being that the Secretary of State wrongly treated the question of whether removal would breach the applicant’s Article 8 rights, or in the case of Mr Byndloss those of his family, as identical with the statutory question under section 94B(3) of whether it would cause "serious irreversible harm".[3]In my reasons for refusing permission on the papers I acknowledged that it was, to put it no higher, strongly arguable that the Secretary of State had made the same error here as in Kiarie and Byndloss. However, both appeals in that case failed because this court found that the errors were immaterial because even if the Secretary of State had considered the correct question, namely whether the applicants' removal pending the outcome of their appeal would breach either their own rights under Article 8 or those of their family (taking into account in that context also section 55 of the Borders, Citizenship and Immigration Act 2009), she would inevitably have concluded that it would not. I said that it appeared that that was the case here also because it appeared from the judgment of Judge Gill that no evidence had been put before the Secretary of State addressing what I might compendiously call the Article 8/section 55 issues (see paragraphs 25 to 29 of her judgment).[4]Ms Akinbolu's answer to that, as formulated at paragraph 21 of her advocate's statement, is that the evidence which Judge Gill says was, missing was specifically, evidence that the applicants' removal would lead to “serious irreversible harm” and thus that her comments about the absence of such evidence were directed to the wrong target. I do not believe that this is even arguably a good answer to the point. Although "serious irreversible harm" and breach of Article 8 are not the same, in practice the evidence relied on to establish either would be substantially identical. What Judge Gill in fact said more than once was that her attention had not been drawn to any evidence that was before the Secretary of State "of the impact on the child" of being separated from the applicant. If there was no such evidence, it seems to me that there was no evidence that could have supported a case under Article 8 or section 55 either; and it is in fact clear, having explored the matter with Ms Akinbolu in the course of the oral hearing, that there was indeed no such evidence submitted to the Secretary of State.[5]Ms Akinbolu's advocate's statement also contained the germ of a different potential answer, which was developed by her in her oral submissions. Judge Gill's point had been about the absence of evidence produced to the Secretary of State. Ms Akinbolu referred to the many authorities which establish that in a case involving Convention rights a court entertaining a claim for judicial review has to go beyond its conventional reviewing function and to some extent consider the merits of the human rights claim for itself. She referred in particular to R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60; [2015] AC 945 but there are many cases to the same effect. She pointed out that there was much more extensive evidence before the Upper Tribunal about the impact on the applicant's wife and daughter of a further separation, including witness statements from his wife and mother-in-law and a letter to the judge from [A] herself.[6]However, as I pointed out to her, that submission appears to be squarely contrary to what Richards LJ said at paragraph 99 of the judgment in Kiarie and Byndloss, where he said:
"I should make clear at this point that I accept Lord Keen's submission that the lawfulness of the supplementary decision must be assessed on the basis of the evidence before the Secretary of State at the time of that decision. ... I reject a contention by Mr Gill that the court should decide the matter for itself on the basis of all the evidence now before the court. That would go beyond review of the Secretary of State's decisions and would involve a usurpation of her role as the person entrusted by Parliament with the power to certify under section 94B."
Ms Akinbolu said that that was hard to reconcile with the authorities to which I have referred. I am not sure on reflection that that is so. For the court to confine itself to the evidence available to the decision taker does not necessarily prevent it reaching its own view on the substantive human rights issue involved. However, whether that is a satisfactory answer or not, it seems to me that I am clearly bound by the decision of this court; what Richards LJ said was plainly part of his ratio.[7]I turn to the second ground. This is based entirely on the opinion of Judge Pinto de Albuquerque, in which Judge Vucinic joined, in the decision of the Grand Chamber of the European Court of Human Rights in De Souza Ribeiro v France (no. 22689/07). At the start of paragraph 83 of its judgment the court in that case said this:
" ... where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect."
It then goes on to say that there must nevertheless be an effective means of challenging a deportation order; but the first sentence makes it clear that an "effective means" is not incompatible with removal pending the outcome of such a challenge. That decision is, of course, central to the lawfulness of the new system of deportation appeals considered in Kiarie and Byndloss, though there does not appear in that case to have been any specific reference to the Ribeiro decision.[8]The opinion of Judge Pinto on which Ms Akinbolu replies is described as a concurring opinion. There are two aspects of it on which she relies, which I take in turn.[9]First, at page 48 of the report

Judge Pinto says:

" ... Article 13 read in conjunction with Article 8 does impose the necessity of an automatic suspensive remedy against expulsion, deportation, removal or any other similar measure when it would allegedly put migrants in danger of irreversible damage to their family lives."
Ms Akinbolu submitted that that passage and the discussion which precedes it prescribed a higher threshold than the Secretary of State had applied in concluding that there would in the applicant's case be no "serious irreversible harm" as a result of his temporary removal – which is of course the criterion identified, albeit not as the only criterion, in section 94B(3), though Judge Pinto was employing it in the context of what I might call unvarnished Article 8.[10]I can see no sign in the Secretary of State's decision that she did apply any higher threshold. I did not understand Ms Akinbolu to be putting any weight on the fact that the Secretary of State uses the adjective "serious" whereas Judge Pinto does not. Even if she was, I cannot regard that as a substantive difference. The Secretary of State simply says that she does not consider that there is a real risk of serious irreversible harm because there was insufficient evidence demonstrating such a risk. That does not imply that she was applying a low threshold; indeed it really invokes the same point as is fatal to ground 1, namely the absence of any relevant evidence. Ms Akinbolu did refer briefly to the terms of the then current guidance which gives various examples of serious irreversible harm. A copy of the guidance with the examples was not produced, and I am not in a position to comment on the examples but in any event they are no more than examples.[11]Ms Akinbolu's case on this could in truth only really succeed if it could be said that in any case where a father facing removal pending an appeal against deportation had a genuine and subsisting parental relationship with a child of [A]'s age there was a risk of serious irreversible harm to their family life so as to attract section 94B(3) and/or involve a breach of Article 8 as expounded by Judge Pinto. Ms Akinbolu did not put it that high and I think she was right not to do so.[12]Second, Ms Akinbolu relies on a passage in

Judge Pinto's opinion at page 44, where he says that:

"When the case is not manifestly ill-founded, a stay of execution of the appealed decision is called for by the very nature of the review proceedings."
She submits that it follows that the Secretary of State ought not to certify, and thus ought to allow an in-country appeal in every case, where she recognises that an appeal may have some chance of success – in effect in any case where she has not certified the substantive deportation decision under section 94, which she has not done here.[13]I am far from sure that Judge Pinto did mean to say that there should be an automatic stay in all family life cases unless the appeal could be shown to be manifestly ill-founded. In summing-up the discussion in the course of which he had made the observation on which Ms Akinbolu relies he said at page 46 that migrants "have the right to an automatic suspensive review of any order of expulsion, deportation, removal or any similar measure when they face the risk of alleged irreversible damage to their family lives". That last phrase incorporates the condition of risk of serious irreversible harm, which brings us back to Ms Akinbolu's first way of putting it.[14]However, even if Ms Akinbolu's interpretation is right, I have to agree with Judge Gill that Judge Pinto was plainly going beyond what the majority said at paragraph 83 of the judgment. Ms Akinbolu submits that that is not so, referring to the fact that this was a concurring opinion. But I cannot accept that. The majority had in fact allowed the appeal, though on a purely fact specific basis, and Judge Pinto concurred in that result. That is why it is a concurring opinion. But he makes it clear at page 33 that he is writing a separate opinion precisely because he regards paragraph 83 of the decision of the majority as wrong because, as he puts it, it contravenes the necessary standards of protection for migrants.[15]Accordingly, despite Ms Akinbolu's intelligent submissions to me, I would maintain my original refusal of permission to appeal on the basis that the appeal has no arguable prospect of success. The applicant is subject to removal directions for this coming Saturday and it follows from my refusal of permission that there is now no obstacle to his removal.[16]I wish to emphasise, though in truth this should be clear, that this decision is concerned entirely with the lawfulness of the Secretary of State's certification decision under section 94B; it has no implications whatever for the separate question of the lawfulness of the deportation decision, which the applicant can, and no doubt will, challenge by way of an out-of-country appeal, and I have formed no view whatever on the merits of such an appeal. I express the hope and expectation that both the applicant himself and his advisers on the one hand and the tribunal system on the other will do their best to see that that appeal, if brought, is determined as speedily as possible.