AK (Sierra Leone) v Secretary of State for the Home Department [2016] EWCA Civ 999

[2016] EWCA Civ 999Case No C5/2015/2226
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Venue Royal Courts of Justice, Strand London, WC2A 2LLDate Tuesday, 21 June 2016
B e f o r e:
LORD JUSTICE JACKSON
LADY JUSTICE BLACK
Between
AK (SIERRA LEONE)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
DAR Transcript of the Stenograph Notes of WordWave International LimitedA DTI Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Ms G Kiai (instructed by Southwark Law Centre) appeared for AppellantMr R Fortt (instructed by Government Legal Department) appeared for Respondent

J U D G M E N T (Approved

LORD JUSTCE JACKSON: This judgment is in four parts, namely, Part 1, Introduction; Part 2, The facts; Part 3, The present proceedings; Part 4, The appeal to the Court of Appeal. Part 1: Introduction

[2]This is an appeal by a foreign criminal against an Upper Tribunal decision upholding the Secretary of State's refusal to revoke a deportation order. The central issues in this appeal are the effect of concessions made by the Secretary of State before the First-tier Tribunal and whether the foreign criminal can resist deportation in reliance upon the long residence provisions.[3]AK is the deportee. AK was Appellant before the First-tier Tribunal and Respondent before the Upper Tribunal. I shall refer to him as the Claimant. I shall refer to the Nationality, Immigration and Asylum Act 2002 as amended by the Immigration Act 2014 as "the 2002 Act".[4]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. (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."[5]Paragraphs 398 to 399A of the Immigration Rules, as amended with effect from 28 April 2014, contain more detailed provisions to the same effect as section 117C of the 2002 Act.[6]After these introductory remarks, I must now turn to the facts.

Part 2: The facts

[7]The Claimant is a citizen of Sierra Leone who was born on 31 December 1984. He came to the UK at the age of 7 or 8 in order to join his mother. The precise date of his arrival is unclear. He obtained leave or an extension of his leave to remain in April 1993. He obtained indefinite leave to remain on 16 October 1996.[8]Unfortunately, the Claimant turned to crime in his teens. He had a number of convictions for theft, cannabis and handling stolen goods. On 21 June 2005 at the age of 20 the Claimant was convicted at Blackfriars Crown Court of possessing contain with intent to supply. The judge adjourned the case for reports. On 23 September 2005 the Claimant received a sentence of 30 months' imprisonment.[9]On 20 March 2006 the Secretary of State notified the Claimant of her intention to deport him to Sierra Leone. The Claimant appealed unsuccessfully against that decision. On 9 August 2006 the Secretary of State made a deportation order against the Claimant. The Claimant attempted to challenge that order without success. His appeal rights were exhausted on 14 November 2006.[10]Despite her success in the litigation, the Secretary of State did not then proceed to deport the Claimant. In those circumstances, the Claimant remained living in the UK.[11]On 30 April 2011 he was convicted of assaulting a police officer. He received a sentence of 84 days' imprisonment. He also committed a number of other offences for which he received non-custodial sentences.[12]On 11 July 2012 the Claimant applied to the Secretary of State for revocation of his deportation order. The Secretary of State refused. The Claimant appealed. On 1 August 2013 the First-tier Tribunal dismissed that appeal. The Claimant appealed to the Upper Tribunal. The Upper Tribunal dismissed that appeal on 29 November 2013.[13]On 5 February 2014 the Claimant sent a fresh application to the Secretary of State to revoke the deportation order. On 14 February 2014 the Secretary of State refused to do so. She certified the Claimant's claim as clearly unfounded under section 94(2) of the 2002 Act.[14]During March 2014 the Claimant was duly deported to Sierra Leone. The Claimant was aggrieved by his deportation. Accordingly, he commenced the present proceedings.

Part 3: The present proceedings

[15]The Claimant commenced an out of country appeal against the Secretary of State's refusal to revoke her deportation order. That appeal came on for hearing before First-tier Tribunal Judge Underwood on 30 October 2014. Mr Decker, a law student and a friend of the Claimant, appeared for the Claimant. Mr Bose appeared as the Home Office Presenting Officer for the Secretary of State. The hearing proceeded on the basis that the Claimant had a genuine relationship in the UK with his two children even though he was no longer living with their mother, his ex-wife. The Claimant contended that he fell within rule 399A of the Immigration Rules and Exception 1 as defined in section 117C(4) of the 2002 Act.[16]Mr Decker called as a witness Ms Petronella West. Ms West knew the Claimant through her local church, which both of them attended. She also knew that the Claimant had being working there for some time as a chef. She and her husband had various charitable interests in Sierra Leone which took them there from time to time. Ms West gave evidence that when she was in Sierra Leone on charitable business she made contact with the Claimant after his deportation in order to see how he was. According to paragraph 19 of the First-tier Tribunal decision, Ms West said that she found the Claimant living in:
"a shanty town slum in one of the poorest parts of the city. When he was deported to Sierra Leone, we understand that he was left at Lungi airport with no money or food. We were advised that a policeman took pity on him and gave him some accommodation and food for a few days. Eventually, his mother in the UK made contact with her old Baptist church in Freetown and a lady called Miss Alice has kindly taken him into her family. I met with her and her family when I came there. They are living with six in one room in the most awful conditions with no proper sanitation or running water. He says he has no money and no contacts in Sierra Leone and is relying on handouts from his friends within St Mark's to keep going."
[17]According to the First-tier Tribunal Judge, Ms West's evidence continued to the effect that the Appellant appeared to be totally unprepared for third world living compared to the UK, taking into account the fact that he had come to the UK at the age of 7. He had not received any inoculations to prepare him for a stay there. He had no anti-malaria tablets and did not know anyone there. He did not speak the local dialect. He could not get to work. He was desperate to come home to see his children and family. He had been sick with malaria and was at a very high risk of illness from the general water supply.[18]That was the gist of her evidence. The First-tier Tribunal Judge continued to summarise further parts of her evidence in paragraph 20 of his decision, but I need not read that passage out.[19]Another witness was available to be called concerning the strength of the Appellant's links with this country, his activities at St Mark's Church and so forth, but that witness did not give evidence, there being no challenge to his written statement.[20]During the course of the hearing, Mr Bose, the Home Office Presenting Officer, made certain concessions. I shall read out paragraphs 31 and 34 to 35 of the First-tier Tribunal decision which summarises the concessions made: "31. Having ascertained during the hearing that the provisions of the current rules as of July 2014 were likely to be relevant and possibly determinative, I allowed Mr Bose the opportunity of taking instructions in relation to the factual position not disputed as to the Appellant's circumstances after deportation in Sierra Leone and the applicability of the facts relating to that situation as to the new rules and paragraph 117B, et cetera, of Part A of the 2002 Act. Mr Bose took instructions and maintained the general grounds raised in the refusal letter whether in relation to the Immigration Rules in force at the time of the decision or the new Immigration Rules...[34]In relation to Exception 1, however, there is no issue as to the fact that the Appellant has been lawfully resident in the UK for most of his life, having lawfully entered the UK in 1992 and thereafter obtained indefinite leave to remain. On that basis, it is clear that he has become "socially and culturally integrated into the United Kingdom" and given the clear findings of the earlier tribunal that the effect of deportation would be exile, the Appellant having no family or roots remaining in Sierra Leone. It is self-evident that he meets this relevant exception and that accordingly the Respondent takes the view that the public interest does not require his deportation. Mr Bose accepted that the Appellant did indeed meet Exception 1.[35]Similarly, in relation to the new rules, Mr Bose accepted that the Appellant met the provisions of paragraph 399A in like terms to section 117C. " Paragraph 399A is, of course, the counterpart in the rules to section 117C(4) of the 2002 Act.[21]First-tier Tribunal Judge Underwood took the view that the Act and the Rules together formed a complete code as to how Article 8 claims should be dealt with. That was a correct view of the matter: see MF (Nigeria) v Secretary of State for the HomeDepartment [2013] EWCA Civ 1192; [2014] 1 WLR 544. Accordingly, the First-tier Tribunal Judge allowed the Claimant's appeal.[22]The Secretary of State was aggrieved by that outcome and she appealed to the Upper Tribunal. She advanced three grounds of appeal. First, she said that the First-tier Tribunal misapplied rule 399A and section 117C of the 2002 Act in holding that the Claimant was socially and culturally integrated in the United Kingdom. Secondly, she said that in accepting the Home Office Presenting Officer's concessions, the First-tier Tribunal erred and anyway, those concessions were now withdrawn. Thirdly, she said that the First-tier Tribunal erred in failing to have regard to the high public interest that foreign criminals should be deported.[23]The Upper Tribunal allowed the Secretary of State's appeal. The Upper Tribunal Judge held that the Secretary of State was entitled to withdraw her concession. The Upper Tribunal held that the First-tier Tribunal had failed to give proper reasons for holding that the Claimant fell within Exception 1.[24]The crucial parts of the Upper Tribunal decision read as follows: "38. In the determination, the judge stated that the Presenting Officer accepted that the Appellant did meet Exception 1 and the provisions of paragraph 399A and that therefore the appeal must succeed as the Appellant met the requirements of the rules.[39]It is surprising that there is no statement from the Presenting Officer as to what concession he did or did not make. Indeed, it may have been that he accepted that if the Appellant met the provisions of paragraph 399A and section 117C then the appeal should be allowed. However, that has not been argued before me. What is argued is that that concession has been withdrawn. I follow the judgment of the Court of Appeal in NR(Jamaica) [2009] EWCA Civ 856 and consider that the Respondent is entitled to withdraw that concession.[40]In any event, I find that there are errors of law in the determination in that it is the duty of the judge to give reasons for the decision which he has made. In this case, he has to give reasons as to why he concluded that the Appellant met the provisions of paragraph 399A and section 117C.[41]Although in paragraph 37 of the determination the judge stated that while it was accepted that the Appellant met the requirements of over 20 years' residence in Britain and the findings of the First-tier Tribunal, which the judge had taken into account following the principles in Devaseelan, that the Appellant still had ties in Britain and that he would have met the terms of the former rules, that is not a sufficiently clear analysis of the Rules as they stood at the time of the determination. He gives no reasons for his decision that the terms of rule 399A are met and he did not even consider the provisions of rule 399A(c). That is a clear error of law. Similarly, he also erred in that he did not consider the terms of section 117C(4)(c), Exception 1. I therefore set aside the decision of the judge of the First-tier Tribunal."[25]The Upper Tribunal Judge then proceeded to remake the decision. In paragraph 43 he held that limb (a) of Exception 1 was satisfied. In paragraph 47 he held that the Claimant was socially and culturally integrated into the UK, therefore rejecting the first ground of the Secretary of State's appeal. He held that limb (b) of Exception 1 was satisfied. This court has renumbered the paragraphs of the Upper Tribunal decision where the numbering has gone chaotic. In what we are now calling paragraph 47A, he held that there would be not be very significant obstacles to the Claimant's reintegration into Sierra Leone. Therefore, limb (c) was not satisfied.[26]He allowed the Secretary of State's appeal on the basis that limb (c) of Exception 1 was not satisfied. The Claimant was aggrieved by that decision and appeals to the Court of Appeal. Part 4: The appeal to the Court of Appeal[27]By an appellant's notice filed on 13 July 2015 the Claimant appealed to the Court of Appeal on three grounds, all relating to the Secretary of State's concession.[28]The first ground is that the Secretary of State was not at liberty to withdraw a concession after the case had concluded. It was argued in the paragraphs under the first ground that it could not be fair or just for the Secretary of State to reopen a concession weeks or months after a substantive hearing.[29]The second ground of appeal was that the Upper Tribunal misapplied the law. The tribunal failed to consider the question of prejudice and whether there was any good reason for the withdrawal of the concession.[30]The third ground of appeal was that before the First-tier Tribunal all the elements of the appeal were conceded. In those circumstances, it was not legitimate or not just to allow withdrawal of the concessions.[31]Having regard to the way that the grounds of appeal have been framed and the way that the appeal has been argued today, I shall begin by reviewing the law concerning the making and withdrawal of concessions.[32]Carcabuk, appeal number 00/TH/01426 dated 18 July 2000 was a decision of the Immigration Appeal Tribunal comprising Collins J and Mr Ockelton dealing with two cases where issues arose concerning concessions made by the Secretary of State. The concessions concerned the credibility of the Claimants in two cases at hearings before the adjudicator. In paragraph 11 of his judgment, Collins J, delivering the judgment of the Immigration Appeal Tribunal, held that concessions of fact made by a Home Office Presenting Officer may be queried by a adjudicator, but if the Home Office Presenting Officer maintained the concessions, they bound the adjudicator. Nevertheless, the Secretary of State may be able to withdraw the concessions on appeal.[33]In Opacic, appeal number 01/TH/00850 dated 15 May 2001, the Immigration Appeal Tribunal reviewed the application of the principles stated in Carcabuk to different circumstances. The Immigration Appeal Tribunal noted that in Carcabuk the concessions under consideration related to credibility, whereas in the matters before the Immigration Appeal Tribunal, the concessions were in a different context. At paragraph 22, the tribunal said:
"Where an appeal has been conceded in its entirety, as in these cases, we do not consider that such a concession can be withdrawn and we see nothing in Carcabuk and Bla that leads us to any contrary view."
[34]In Secretary of State for the Home Department v Davoodipanah [2004] EWCA Civ 106 an issue arose about a concession made by the Secretary of State. Kennedy LJ, with whom Clarke LJ and Jacob LJ agreed, said that the Immigration Appeal Tribunal had power to allow withdrawal of a concession. The tribunal would exercise that power in order to do justice in the circumstances of the case.[35]In NR (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 856 the Home Office Presenting Officer made two different concessions at separate hearings. The first concession was that if the appellant was a lesbian, she would be at real risk on return. The second concession made at a separate hearing was that the appellant was indeed a lesbian and in a relationship with a woman called Ms S in 2006 and 2007. The Asylum and Immigration Tribunal allowed the Secretary of State to withdraw both the concessions. The Court of Appeal upheld that decision. Goldring LJ, with whom Lloyd LJ and Mummery LJ agreed, stated at paragraph 12:
"As Kennedy LJ makes clear, the Tribunal may in its discretion permit a concession to be withdrawn if in its view there is good reason in all the circumstances for that course to be taken. Its discretion is wide. Its exercise will depend on the particular circumstances of the case before it. Prejudice to the applicant is a significant feature. So is its absence. Its absence does not however mean that an application to withdraw a concession will invariably be granted..."
[36]The Court of Appeal applied those principles in CD (Jamaica) v Secretary of State forthe Home Department [2010] EWCA Civ 768, but that judgment does not call for any further discussion.[37]Similar issues arose in a case in this court last week, namely Koori v Secretary of Statefor the Home Department [2016] EWCA Civ 552. The appellants in that case contended that they could benefit from rule 276ADE(iv) of the Immigration Rules. That rule provided that the requirements to be met by an applicant for leave to remain on the grounds of private life in the UK were that the applicant was under the age of 18 years and had lived continuously in the UK for at least seven years, discounting any period of imprisonment, and that it would not be reasonable to expect the applicant to leave the UK.[38]Mr Malik on behalf of the appellants contended that the Secretary of State had conceded that the seven year rule was satisfied. Mr Malik failed in that submission on the facts. In relation to the issue of principle, however, Elias LJ, with whom Underhill LJ and Peter Jackson J agreed, said this at paragraph 31:
"I would accept that if there had been a considered and lawful decision to deem the seven year rule to be satisfied, the Secretary of State should not be allowed to resile from that decision. An administrative body cannot keep revisiting decisions which affect individual rights: there must be finality, at least unless there is a powerful public interest to the contrary."
[39]Bearing in mind that guidance from the authorities, I turn to the Upper Tribunal decision in the present case. The Upper Tribunal Judge deals with withdrawal of the concession in paragraph 39. I have read that paragraph out in part 3 of this judgment. He simply says that he follows NR and considers that the Secretary of State is entitled to withdraw her concession. There is no analysis of the circumstances of the case. There is no consideration of prejudice. There is no consideration of the interests of justice. The Upper Tribunal Judge did not have to make any finding about the extent of the concessions because the argument was presented on the simple basis that they had been withdrawn.[40]Mr Russell Fortt who appears for the Secretary of State very properly conceded that that is not good enough. He accepts that the Claimant's appeal must succeed. He submits that we should remit the case to the Upper Tribunal so that it can rehear the Secretary of State's appeal. Mr Fortt submits that there was a clear error of law in the way the First-tier Tribunal dealt with limb (c) of Exception 1. There was no proper consideration of the obstacles which the Claimant would face in Sierra Leone. The Upper Tribunal found that in paragraphs 40 to 41. Therefore, the Upper Tribunal, having found those errors of law, should now reconsider the Secretary of State's appeal on a proper basis.[41]Ms Gilda Kiai for the Claimant submits that mere remission to the Upper Tribunal is not a satisfactory remedy. The Home Office Presenting Officer made concessions of fact which were binding on the First-tier Tribunal. The Home Office Presenting Officer could have withdrawn those concessions at any time during the hearing, at least if he obtained leave to do so. But, says Ms Kiai, it is not appropriate to do so many months later.[42]Moreover, the Home Office Presenting Officer was effectively conceding the whole appeal because he said that all three limbs of Exception 1 were satisfied. She relies in particular on paragraph 22 of Opacic and paragraph 31 of Koori, both of which I have read out earlier. Warming to her theme, Ms Kiai submits that the whole case was effectively concluded before the First-tier Tribunal. There was no error of law. Therefore, the Upper Tribunal Judge had no jurisdiction to hear any appeal.[43]In my view, it is clear that at the hearing before the First-tier Tribunal, the Home Office Presenting Officer conceded that all three limbs of Exception 1 were satisfied. On appeal, the Upper Tribunal Judge agreed that limb (a) was satisfied. Contrary to the Secretary of State's contention, the Upper Tribunal Judge held that limb (b) was also satisfied. The Secretary of State has not served any respondent's notice to challenge those matters. I shall, therefore, proceed on the basis that the only relevant issue concerns limb (c).[44]The Home Office Presenting Officer conceded limb (c) at the hearing before the First-tier Tribunal. The First-tier Tribunal Judge did not query that concession. In my view, there was no obligation on him to do so. The concession made was a carefully considered decision by the Home Office Presenting Officer after hearing the evidence of Ms West. The First-tier Tribunal Judge had also heard the oral evidence from Ms West about the circumstances in which the Claimant was living in Sierra Leone.[45]At this point, it is important to remember the functions of rules 398 to 399A and sections 117A to D of the 2002 Act. These provisions set out a complete code for dealing with Article 8 claims put forward by foreign criminals: see MF (Nigeria) to which I have referred earlier.[46]The correct approach for any decision maker applying section 117C of the 2014 act and rules 398 to 399A of the Immigration Rules is now well-established. The task is not to carry out a freestanding analysis of the Article 8 factors. The Secretary of State has already carried out that exercise in drafting rules 398 to 399A. Those rules form a complete code explaining how Article 8 operates in cases where a foreign criminal is resisting deportation. The decision maker must take account of the proposed deportee's Convention rights through the lens of the Immigration Rules.[47]Therefore, if the Claimant fell within Exception 1, that was an end of the matter. He was entitled to revocation of the deportation order. Equally, if the Claimant did not fall within any of the saving provisions in sections 117 A to D and in Immigration Rules 398 to 399A, then he could not rely on Article 8 and he could not resist deportation.[48]It follows that the concessions made by the Home Office Presenting Officer were such as to determine the entire appeal. The First-tier Tribunal Judge, as he was entitled to do, accepted those concessions. That was the end of the case.[49]I do not need to go so far as to say that in such circumstances the Secretary of State could never appeal to the Upper Tribunal, but on the facts of this particular appeal, it seems to me quite unjust that the Secretary of State, having conceded on all points, should be entitled to resurrect her case and withdraw the concessions which she had made. As Mr Fortt rightly concedes, the Upper Tribunal gave no good reason for allowing the Secretary of State to take that course.[50]Against that background and some two years eight months after the Secretary of State made her concessions, I think it would be unjust to remit this case to the Upper Tribunal so that the Secretary of State can now embark upon another attempt to withdraw her concessions. In the result, therefore, if my Lady agrees, this appeal will be allowed and the decision of the First-tier Tribunal will be reinstated.

LADY JUSTICE BLACK: I agree.

Cited in 3 later judgments