NA (Pakistan) v Secretary of State for the Home Department & Ors [2016] EWCA Civ 662

“Automatic deportation (1) In this section “foreign criminal” means a person- (a) who is not a British citizen, (b) who is convicted in the United Kingdom of an offence, and (c) to whom Condition 1 or 2 applies. (2) Condition 1 isthat the person is sentenced to a period of imprisonment of at least 12 months. (3) Condition 2 is that- (a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c.41) (serious criminal), and (b) the person is sentenced to a period of imprisonment. (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). (6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless- (a) he thinks that an exception under section 33 applies, (b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or (c) section 34(4) applies.”

“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 tosubject 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. (3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction. (4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the Community treaties.”

“PART 5A ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS 117A Application of this Part (1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts— (a) breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful under section 6 of the Human Rights Act 1998. (2) In considering the public interest question, the court or tribunal must (in particular) have regard— (a) in all cases, to the considerations listed in section 117B, and (b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C. (3) In subsection (2), “the public interest question” means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2). 117B Article 8: public interest considerations applicable in all cases (1)The maintenance of effective immigration controls is in the public interest. (2) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are able to speak English, because persons who can speak English— (a) are less of a burden on taxpayers, and (b) are better able to integrate into society. (3) It is in the public interest, and in particular in the interests of the economic well-being of the United Kingdom, that persons who seek to enter or remain in the United Kingdom are financially independent, because such persons— (a) are not a burden on taxpayers, and ARTICLE 8 OF THE ECHR: PUBLIC INTEREST CONSIDERATIONS (b). are better able to integrate into society. (4). Little weight should be given to— (a). a private life, or (b). a relationship formed with a qualifying partner, that is established by a person at a time when the person is in the United Kingdom unlawfully. (5) Little weight should be given to a private life established by a person at a time when the person’s immigration status is precarious. (6) In the case of a person who is not liable to deportation, the public interest does not require the person’s removal where— (a) the person has a genuine and subsisting parental relationship with a qualifying child, and (b) it would not be reasonable to expect the child to leave the United Kingdom. 117C Article 8: additional considerations in cases involving foreign criminals (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— (a) C has been lawfully resident in the United Kingdom for most of C’s life, (b) C is socially and culturally integrated in the United Kingdom, and (c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported. (5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental 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. 117D Interpretation of this Part (1) In this Part— “Article 8” means Article 8 of the European Convention on Human Rights; “qualifying child” means a person who is under the age of 18 and who— (a) is a British citizen, or (b) has lived in the United Kingdom for a continuous period of seven years or more; “qualifying partner” means a partner who— (a) is a British citizen, or (b) who is settled in the United Kingdom (within the meaning of the Immigration Act 1971 — see section 33(2A) of that Act). (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. …”

“42. … In our view, that is not to say that a test of exceptionality is being applied. Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's Article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal. In our view, it is no coincidence that the phrase "exceptional circumstances" is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals. 43. The word "exceptional" is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation. These compelling reasons are the "exceptional circumstances". 44. We would, therefore, hold that the new rules are a complete code and that the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence. We accordingly respectfully do not agree with the UT that the decision-maker is not "mandated or directed" to take all the relevant Article 8 criteria into account (para 38). 45. Even if we were wrong about that, it would be necessary to apply a proportionality test outside the new rules as was done by the UT. Either way, the result should be the same. In these circumstances, it is a sterile question whether this is required by the new rules or it is a requirement of the general law. What matters is that it is required to be carried out if paras 399 or 399A do not apply. 46. There has been debate as to whether there is a one stage or two stage test. If the claimant succeeds on an application of the new rules at the first hurdle ie he shows that para 399 or 399A applies, then it can be said that he has succeeded on a one stage test. But if he does not, it is necessary to consider whether there are circumstances which are sufficiently compelling (and therefore exceptional) to outweigh the public interest in deportation. That is an exercise which is separate from a consideration of whether para 399 or 399A applies. It is the second part of a two stage approach which, for the reasons we have given, is required by the new rules. The UT concluded (para 41) that it is required because the new rules do not fully reflect Strasbourg jurisprudence. But either way, it is necessary to carry out a two stage process.”

“28. Mr Pilgerstorfer submits that the first task of the First-tier Tribunal in a case such as this is to consider whether the claimant can bring himself within rules 399 or 399A. If he cannot, then matters of the character described in those two rules drop out of the picture. Thus matters such as length of residence in the UK and lack of ties with Zambia cannot form part of the aggregation of matters which collectively constitute "exceptional circumstances" within the meaning of rule 398. 29. I do not accept this argument for two reasons. First, as a matter of construction, rules 398, 399 and 399A do not either expressly or impliedly "ring fence" the 399/399A factors in the way that Mr Pilgerstorfer suggests. Rule 398 first requires the Secretary of State to see whether the proposed deportee falls into the safety net of rule 399 or 399A. If he/she does not, then rule 398 requires the Secretary of State to consider whether there are exceptional circumstances which outweigh the public interest in deportation. Obviously there is no "near miss" principle. A deportee who has a sentence slightly longer than 4 years or who fails by a small margin to satisfy 20 years' residence requirement cannot say that that fact alone constitutes "exceptional circumstances". But it would be bizarre if the Secretary of State were required to ignore such matters altogether when considering whether there were "exceptional circumstances". 30. In my view, rule 398 requires the Secretary of State (and on appeal the First-tier Tribunal) to consider all relevant matters in deciding whether there are "exceptional circumstances" which outweigh the public interest in deportation. In the vast majority of cases the answer will be no. But the Secretary of State cannot take a shortcut to arrive at that answer by ignoring every circumstance of the character mentioned in rules 399 and 399A.”

“Neither the British nationality of the respondent’s children nor their likely separation from their father for a long time are exceptional circumstances which outweigh the public interest in his deportation.”

“But, in seeking to establish … very compelling circumstances [for the purposes of section 117C(6)] the appellant cannot rely upon factors he points to in order to establish that he falls within Exceptions 1 or 2 because he would not then have identified very compelling circumstances over and above those described in those Exceptions”

“47. In any event, it is plain that this appeal falls to be dismissed. That is because, even if the appellant was able to establish that he would face very significant obstacles to integration in Pakistan and/or that the effect upon his children would be unduly harsh he would then need to go on to show something more than that. The effect of s117C(6) is that he needs to show that there are very compelling circumstances over and above what he has relied upon to establish that he would have fallen within Exceptions 1 or 2 had they been open to him. 48. It seems to us that means that there must be factors not accommodated within those Exceptions, or in addition to what is required to bring him within them, that speak cogently against deportation. In this case the appellant can point to the fact that he has elderly parents living in the United Kingdom. But if separation from his wife and minor children, whose best interests are served by him remaining here, is not sufficient to outweigh the public interest in deportation then plainly disruption of his relationship with his parents will not either. We invited Mr Bashir to identify what factors in particular he relied upon to establish very compelling circumstances over and above that relied upon to qualify for Exception 1 or 2. He said that as the appellant has been here for 39 years since he was 3 months old he should be treated, effectively, as a British citizen. We are unable to accept that submission. The length of his residence has already been taken regard of within the statutory framework we have discussed. The appellant is not a British citizen. That may well be because he began to commit criminal offences in 1998, a Community Service Order being imposed for offences of driving a motor vehicle with excess alcohol and while disqualified and having no insurance. Nor do we accept these matters taken together with the mental upset that he may suffer on being separated from his family, including his elderly parents, combined with the difficulties of establishing himself in Pakistan are of sufficient import to amount to very compelling circumstances.”

“For the avoidance of any possible doubt, we have looked at everything advanced on the appellant’s behalf and it is plain that the same outcome would be delivered by an assessment of the appellant’s Article 8 claim even outside the added focus now provided by s. 117 because the appellant’s deportation is plainly a proportionate response to the serious crimes he has committed.”

“In general terms therefore were the appellant not to meet the strict requirements of the Rules it would generally only be in exceptional circumstances Article 8 would be held to apply. There would need to be compelling circumstances outside of the Rules which would make deportation unduly harsh in all the circumstances.”