“General obligations Every refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order.”
“A person shall be presumed to have been convicted by a final judgment of a particularly serious crime and to constitute a danger to the community of the United Kingdom if he is (a) convicted in the United Kingdom of an offence, and (b) sentenced to a period of imprisonment of at least two years”
“A presumption under subsection (2), (3) or (4) that a person constitutes a danger to the community is rebuttable by that person.”
“32 …… (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. (7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.”
“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) …….. (2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach— (a) a person's Convention [i.e. ECHR] rights, or (b) the United Kingdom's obligations under the Refugee Convention. (3) …… (4) …… (5) …… (6) …… (6A) …… (7)The application of an exception— (a) does not prevent the making of a deportation order; (b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good; but section 32(4) applies despite the application of Exception 1 or 4.” but section 32(4) applies despite the application of Exception 1 or 4.”
“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 undersection 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). (a)breaches a person’s right to respect for private and family life under Article 8, and (b) as a result would be unlawful undersection 6 of the Human Rights Act 1998 . (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. ii) Section 117B provides that: “Article 8: public interest considerations applicable in all cases (1) The maintenance of effective immigration controls is in the public interest. (2) …… (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 (b) are better able to integrate into society ……. .”
“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.”
“make enquiries and produce forthwith to the Tribunal, copies (if any) of: *Judge’s Sentencing Remarks *Pre-Sentence Report *OASyS Report. If such documentation is not available, then Designated Judge Peart is to be advised by email”
“The Offender Risk Assessment… was not a substitute for a full OASys report. The full report was also directly relevant to the question of whether, as asserted by [AM], he had completed an alcohol dependency course and was determined not to drink again. In turn, this went to the question of whether [AM] was a “serious criminal” for the purposes of section 72 of the [NIAA 40. unfair. (See SH (Afghanistan) v Secretary of State for the Home Department[2011] EWCA Civ 1284 ). …… 41. The refusal to grant an adjournment could also not be reasonably justified by any delay on the part of [AM] when it was the Respondent who had been directed to provide the Report”
“. ……he would need in any event to meet the third of the conditions specified in paragraph 399A. The Judge found at [29]: “On the evidence before me I am not satisfied there would be very significant obstacles to his integration into the country to which he is proposed to be deported…”
“Cases where an Immigration Judge requests an OASys report that was not included in the appeal bundle In cases where an OASys report has been obtained and used in making the decision (set out earlier in this PC), but for some reason the report was not included in the bundle for an onward appeal or bail hearing and an IJ requests it, the CC Casework Team must ensure that a copy of the report is made available to the IJ via appropriate channels. Where an IJ requests an OASys report for a hearing where one has not been obtained and used in making the decision (i.e. in non-EEA deportation cases), the CC caseworker must request a copy from NOMS, using the RRI form. Where a report is not available because NOMS have not compiled one for that FNO, CC must ensure that the IJ is notified of this in writing, and via the presenting officer where appropriate.”
“29. ……. the Judge was saying that he saw no realistic prospect that production of the OASys report would have any bearing on the issues for his decision. We do not accept Mr Khan’s submission that this approach deprived the Tribunal of relevant and potentially crucial evidence on the basis of nothing more than speculation. The Judge himself addressed the substance of that submission at [23] when he said “the offender risk assessment which has been provided by Samson Adewole does not take matters much further. The information given is surely incontestable.”
“Administrative decision-making 36. Considering the new rules in the light of the guidance given by the European court, rule 397 makes it clear that a deportation order is not to be made if the person’s removal would be incompatible with the ECHR. Where Article 8 claims are made by foreign offenders facing deportation, rule 398 explains that the Secretary of State will first consider whether rule 399 or 399A applies. Those rules, applicable where offenders have received sentences of between 12 months and four years, provide guidance to officials as to categories of case where it is accepted by the Secretary of State that deportation would be disproportionate. The fact that a claim under Article 8 falls outside rules 399 and 399A does not, however, mean that it is necessarily to be rejected. That is recognised by the concluding words of rule 398, which make it clear that a claim that deportation would be contrary to Article 8 will not be rejected merely because rules 399 and 399A do not apply, but that “it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors”. 37. How is the reference in rule 398 to “exceptional circumstances” to be understood, compatibly with Convention rights? That question was considered in the case of MF (Nigeria) v Secretary of State for the Home Department[2013] EWCA Civ 1192 ;[2014] 1 WLR 544 . The Court of Appeal accepted the submission made on behalf of the Secretary of State that the reference to exceptional circumstances (an expression which had been derived from the Jeunesse line of case law) served the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who did not satisfy rules 398 and 399 or 399A, and that it was only exceptionally that such foreign criminals would succeed in showing that their rights under Article 8 trumped the public interest in their deportation (paras 40 and 41). The court went on to explain that this did not mean that a test of exceptionality was being applied. Rather, the word “exceptional” denoted a departure from a general rule: “The general rule in the present context is that, in the case of a foreign prisoner (sic) to whom paragraphs 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’.” (para 43) The court added that “the exceptional circumstances to be considered in the balancing exercise involve the application of a proportionality test as required by the Strasbourg jurisprudence” (para 44). As explained in the next paragraph, those dicta summarise the effect of the new rules, construed compatibly with Convention rights. 38. The implication of the new rules is that rules 399 and 399A identify particular categories of case in which the Secretary of State accepts that the public interest in the deportation of the offender is outweighed under Article 8 by countervailing factors. Cases not covered by those rules (that is to say, foreign offenders who have received sentences of at least four years, or who have received sentences of between 12 months and four years but whose private or family life does not meet the requirements of rules 399 and 399A) will be dealt with on the basis that great weight should generally be given to the public interest in the deportation of such offenders, but that it can be outweighed, applying a proportionality test, by very compelling circumstances: in other words, by a very strong claim indeed, as Laws LJ put it in SS (Nigeria). The countervailing considerations must be very compelling in order to outweigh the general public interest in the deportation of such offenders, as assessed by Parliament and the Secretary of State. The Strasbourg jurisprudence indicates relevant factors to consider, and rules 399 and 399A provide an indication of the sorts of matters which the Secretary of State regards as very compelling. As explained at para 26 above, they can include factors bearing on the weight of the public interest in the deportation of the particular offender, such as his conduct since the offence was committed, as well as factors relating to his private or family life. Cases falling within the scope of section 32 of the 2007 Act in which the public interest in deportation is outweighed, other than those specified in the new rules themselves, are likely to be a very small minority (particularly in non-settled cases). They need not necessarily involve any circumstance which is exceptional in the sense of being extraordinary (as counsel for the Secretary of State accepted, consistently with Huang[2007] 2 AC 167 , para 20), but they can be said to involve “exceptional circumstances” in the sense that they involve a departure from the general rule. Appellate decision-making 39.The nature of appellate decision-making in the context of immigration cases involving Article 8 was authoritatively considered in the case of Huang. The appellants in that case had entered the UK and were seeking leave to remain on the basis that their removal would violate their rights under Article 8. They did not qualify for leave to remain under the Rules as they then stood. 40. The opinion of the Appellate Committee, delivered by Lord Bingham of Cornhill, made five important points. First, Lord Bingham recognised the importance of the Rules for administrative purposes, noting “the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another” (para 16). He acknowledged that the Rules, and the supplementary administrative directions, must draw a line somewhere in order to be administratively workable. The rule under which Mrs Huang failed to qualify was unobjectionable. 41.Secondly, appellate decision-making was not governed by the Rules, but the Rules were nevertheless relevant to the determination of appeals: “[A]n applicant’s failure to qualify under the rules is for present purposes the point at which to begin, not end, consideration of the claim under Article 8. The terms of the rules are relevant to that consideration, but they are not determinative.” (para 6) 42. Thirdly, an appeal under the 2002 Act was not equivalent to an application for judicial review: “[T]he task of the appellate immigration authority … is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it ... [T]he appellate immigration authority ... is not reviewing the decision of another decision-maker. It is deciding whether or not it is unlawful to refuse leave to enter or remain, and it is doing so on the basis of up-to-date facts.” (paras 11 and 13) 43. Fourthly, the first task of the appellate immigration authority was to establish the relevant facts, which might well have changed since the original decision was made, and which the authority was in any event much better placed to assess than the original decision-maker (para 15). 44.Fifthly, in considering the issue arising under Article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the Secretary of State to justify the decision under appeal. In that connection, Lord Bingham gave as examples a case where attention was paid to the Secretary of State’s judgment that the probability of deportation if a serious offence was committed had a general deterrent effect, and another case where weight was given to the Secretary of State’s judgment that the appellant posed a threat to public order. He continued: “The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.” (para 16) 45. It may be helpful to say more about this point. Where an appellate court or tribunal has to reach its own decision, after hearing evidence, it does not, in general, simply start afresh and disregard the decision under appeal. That was made clear in Sagnata Investments Ltd v Norwich Corpn[1971] 2 QB 614 , concerned with an appeal to quarter sessions against a licensing decision taken by a local authority. In a more recent licensing case, R (Hope & Glory Public House Ltd) v City of Westminster Magistrates’ Court[2011] PTSR 868 , para 45, Toulson LJ put the matter in this way: “It is right in all cases that the magistrates’ court should pay careful attention to the reasons given by the licensing authority for arriving at the decision under appeal, bearing in mind that Parliament has chosen to place responsibility for making such decisions on local authorities. The weight which magistrates should ultimately attach to those reasons must be a matter for their judgment in all the circumstances, taking into account the fullness and clarity of the reasons, the nature of the issues and the evidence given on the appeal.” 46. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above. 47. The approach adopted in Huang has been followed in later decisions of the House of Lords and of this court …….., 48. The structured approach to proportionality which has been adopted in the domestic law of the UK makes provision for consideration of the elements involved in an assessment of fair balance in the context of immigration and deportation, whether the assessment arises in relation to a potential positive obligation or in relation to an interference. It can be said that the first of the four stages of the analysis, as described in Bank Mellat v HM Treasury (No 2)[2013] UKSC 39 ;[2014] AC 700 , para 74 (“whether the objective of the measure is sufficiently important to justify the limitation of a protected right”), and in similar language in Aguilar Quila and other cases, is not entirely apt where the question is whether a positive obligation is imposed, since the language used presumes that the right in question is being limited. But the point is of no practical importance where, as in the context of immigration and deportation, there is no doubt as to the importance of the objective. 49. What has now become the established method of analysis can therefore continue to be followed in this context. The adoption of that method does not, of course, determine the outcome of the assessment. It is necessary to feed into the analysis the facts of the particular case and the criteria which are appropriate to the context, and, where a court is reviewing the decision of another authority, to give such weight to the judgment of that authority as may be appropriate. In that way, relevant differences between, for example, cases where lawfully settled migrants are facing deportation or expulsion, and cases where an alien is seeking admission to a host country, can be taken into account. 50. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the Article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed - very compelling, as it was put in MF (Nigeria) - will succeed. A complete code? 51. In MF (Nigeria)[2014] 1 WLR 544 the Court of Appeal described the new rules set out in para 23 above as “a complete code” for Article 8 claims (para 44). That expression reflected the view that the concluding words of rule 398 required the application of a proportionality test in accordance with the Strasbourg jurisprudence, taking into account all the Article 8 criteria and all other factors which were relevant to proportionality (para 39). On that basis, the court commented that the result should be the same whether the proportionality assessment was carried out within or outside the new rules: it was a sterile question whether it was required by the rules or by the general law (para 45). 52. The idea that the new rules comprise a complete code appears to have been mistakenly interpreted in some later cases as meaning that the Rules, and the Rules alone, govern appellate decision-making. ……. 53. As explained at para 17 above, the Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules: see para 7 above. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State’s assessment of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them, as explained at paras 37-38, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate.” [Emphasis supplied.]