Cyrus, R (on the application of) v Secretary of State for the Home Department [2016] EWHC 918 (Admin)

Case No CO/368/2016[2016] EWHC 918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26/04/2016
Before
MR JUSTICE IRWIN
Between
R (on the application of CARLOS LLEWLYN LYNEOUS CYRUS)ClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Ms Leonie Hirst (instructed by Asylum Aid) for ClaimantMr Tom Poole (instructed by The Government Legal Department) for DefendantHearing Hearing dates: 19 April 2016
JudgmentMr Justice Irwin :Introduction
[1]In this case the Claimant seeks interim relief as part of a claim for judicial review. The Order sought is an Order that the Defendant should grant or reinstate the Claimant’s indefinite leave to remain [“ILR”] in the UK pending the resolution of his claim and his anticipated appeal against a decision of 8 April 2016 to refuse his human rights claim of 19 August 2015 and to maintain the decision to deport the Claimant from the United Kingdom

The Facts

[2]The Claimant was born in London on 1 October 1994. His mother was a Jamaican national and his father a national of Grenada. They were unmarried. According to the Defendant, neither had settled immigration status in the United Kingdom at that time.[3]The Claimant continued to live in London, and indeed has never left the country. On 12 January 2005, the Claimant’s mother and the Claimant were granted ILR.[4]On 11 December 2007, the Claimant was convicted of aggravated vehicle taking, two offences of common assault, robbery, attempted robbery and using a vehicle whilst uninsured. He was sentenced to an eight months Detention and Training Order.[5]The Claimant had become involved with a gang. At the age of 12 in 2007, he was party to the homicide of a supposed member of a rival gang. On 5 January 2009, he was convicted of manslaughter following a trial at the Central Criminal Court. On 21 April 2009, he was sentenced to 11 years’ detention, comprising a seven year custodial term and an extended licence of 4 years. His conviction and sentence were upheld on appeal during the following year.[6]The Claimant was released on licence in August 2011 but recalled in January 2012 for breaching the licence conditions. He was again released on licence in July 2012 but was recalled to prison for breaching his licence conditions. According to the information set out in the Defendant’s GCID case record sheet:
“Between 20 April 2014 and 16 July 2015, [the Claimant] was reprimanded on seven separate occasions at HMP Feltham for “negative behaviour” of various kinds.”
[7]On 4 August 2015, the Parole Board recommended the Claimant’s release.[8]On 18 August 2015, the Claimant was served with a Notice of Decision to make a Deportation Order and on the following day the Claimant responded by making representations why he should not be deported based on his Article 8 rights in the United Kingdom.[9]On 26 August 2015, his custodial sentence came to an end and he was detained under Schedule 3 of the Immigration Act 1971.[10]The Claimant’s representations were recorded and considered by officials acting for the Defendant in the following terms:
“He has provided a letter dated 19 October 2015, detailing his private life in the UK. Mr Cyrus has never left the UK and does not have a passport. He claims all his family members are in the UK. He was granted ILR along with his mother and sister back in 2005. It is considered that his family members in the UK do not rely on him or him on them for his stay in the UK. It is plausible to accept that he has established a private life as a result of him being born in the UK. He was educated in the UK and has attended infant, primary and senior school (although he was expelled). From the age of 12 and maybe younger, he has been associated with gang life culture and was convicted at a young age of Manslaughter for which he received a long sentence. He has been offending from a very young age. Although the Parole Board recommended him for release, they considered that he continued to pose a high risk of harm to others. They considered that his release at this stage “not without risk”
. Mr Cyrus has been resident in the UK all of his life and certainly this would bring him within Article 8 of the ECHR. However, he has not demonstrated that the UK interference with his right is disproportionate. There are no compelling compassionate circumstances to be considered in this case. It is further noted that there are no obstacles preventing him from continuing to enjoy his “private life” outside of the UK. Mr Cyrus does not have any children or a partner in the UK and has not demonstrated that he is financially independent. Therefore it is not considered unduly harsh for him to be deported to Jamaica. Although he has not travelled to Jamaica, he is a young man who is healthy. It is considered that he has been brought up to be familiar with the culture and life of Jamaica. It is also believed that no language barrier exists given that English is the official language spoken there, notwithstanding Patwa is widely spoken there also. Furthermore in his letter dated 19 October 2015, he states that he has the potential to become a football mentor and/or coach. It is considered that the skills and experience he has gained in the UK could assist him in re-establishing himself in Jamaica and could help you secure employment there. In view of the above information, it is submitted that there will be no breach of the UK’s obligations under Article 8 of the ECHR in this case if we decide to pursue deportation against him.”[11]The Home Office case worker recorded the conclusions that the Claimant was not “socially and culturally integrated into the United Kingdom because he has not provided any evidence to show that he has made a positive contribution to society” and the nature of his crime warranted his deportation. The recommendation went on to suggest there would not be “very significant obstacles to the foreign criminal’s integration” in Jamaica. The interference with the Claimant’s private life was not disproportionate and the case was suitable for certification under Section 94B of the Nationality and Immigration Act 2002. The recommendation proceeded:
“He will be afforded an “out of country right of appeal and there is no real risk of serious irreversible harm” before the appeal process is exhausted should Mr McLean (sic) decide that he wishes to appeal.”
That recommendation is dated 21 October 2015.[12]The recommendation was endorsed by a more senior official on 26 October 2015. This was the date of effective decisions taken on behalf of the Home Secretary. The decision to pursue deportation action was approved in the light of the “extremely serious conviction for manslaughter”. It was noted that there was:
“…more scope in this case for rehabilitation … given that Mr Cyrus was 14 years old upon conviction and is now aged 21. However it is also noted that he was recalled to prison for multiple breaches of licence … His probation report states that he subsequently also committed a number of adjudications … in custody. It appears clear that Mr Cyrus still poses a high risk of harm to the public and that his deportation is justified and in the public interest.”
[13]In recording his reasoning, this official acting for the Defendant noted in similar terms to the case worker that the Claimant was born in the UK and “claims to have no experience of life in Jamaica”. However, he spoke English and had inherited cultural ties from his mother, was a healthy adult and could readjust to life abroad.[14]The decision-maker went on in the following terms:
“I have considered the appropriateness of certification and have concluded that Mr Cyrus has not shown that he or his family members would come to serious irreversible harm were he to be deported and then pursue an appeal from abroad. Therefore, notwithstanding his birth in the UK it is considered that he should be afforded an out of country right of appeal under Section 94B of the NIA Act 2000.”
[15]The deportation order bears the date 26 October and the Notice of Decision, including certification pursuant to Section 94B is dated 28 October. Both were communicated to the Claimant under a letter of 28 October. At one point the slight discrepancy in dates was said to be relevant, but no longer.[16]The decision on certification followed the approach laid down in the guidance then available to case workers:
“The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed…. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if he were to be removed …. The Secretary of State does not consider that such a risk exists.”
[17]The Claimant made further representations on 10 December 2015. Judicial Review proceedings were issued on 25 January 2016. The deportation order is said to be unlawful by reference to the Claimant’s Article 8 rights. The decision to certify is said to be unlawful, principally because the Defendant failed to apply the correct test. In addition, there is a claim for unlawful detention as a consequence.[18]The Claimant was released from detention on 7 March 2016, and on 16 March 2016 the Defendant notified the Claimant of an intention to reconsider the decision to deport and that any appeal would be permitted to be heard in-country.[19]Following directions on 4 February 2016 from Ouseley J, the Claimant was granted permission to apply for Judicial Review by Sir Stephen Silber on 23 February 2016 and the judge gave directions expediting the substantive hearing. On 22 March 2016, Roger Ter Haar QC sitting as a Deputy High Court Judge ordered that the claim for unlawful detention should be transferred to the Queen’s Bench Division following determination of the claim for interim relief.[20]Finally, on 8 April 2016 the Defendant notified the Claimant of a fresh decision. The Human Rights claim dated 19 August 2015 was refused and the Defendant decided to “maintain the decision to deport you from the UK”. It is anticipated that there will be an appeal against that fresh decision, which will be pursued in-country.

The Legal Issues

[21]It is conceded by the Secretary of State that the decision on 28 October to certify the Claimant’s Human Rights claim pursuant to Section 94B of the 2002 Act was made in error. Some two weeks before that decision was taken, the Court of Appeal in R (Kiarie) and Another v SSHD [2015] EWCA Civ 1020 was handed down. In Kiarie the Court considered the guidance which had been issued to the Defendant’s case workers on the application of Section 94B.[22]Section 94B of the 2002 Act reads as follows: “94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation(1) This section applies where a human rights claim has been made by a person ('P') who is liable to deportation under – (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) … …(2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).(3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed." (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) …[23]The Court considered that the guidance was incomplete and misleading. It tended to suggest, based on the example set out in Section 94B(3), that it was only if a claimant established “a real risk of serious irreversible harm if removed” that the Secretary of State was precluded from certifying a claim. The limits on certification are broader, as Section 94B(2) makes clear.[24]It is accepted by Mr Poole for the Secretary of State that the decision to certify “focussed erroneously on the question of serious irreversible harm”. However, he goes on to suggest that the error was immaterial and that the decision would have been the same if the correct approach to Section 94B had been taken. He therefore argues that the decision to certify “was lawful”. He points by way of parallel to the judgment of Richards LJ in Kiarie where, in paragraphs 74-78, on the facts of that case, the Court concluded that the errors (including the error as repeated in this case) were not material.[25]The proposition that such an error was not “material” really involves two contentions: firstly, that the same decision would in fact have been reached on certification had the relevant officials been focussed on the correct test; secondly, that such a decision would have been lawful. It seems to me that Mr Poole is correct that the same decision may well have been reached here, given the approach taken by the presenting case officer and the reviewing official, and given the facts which were before them.[26]Would such a decision have been lawful? That question cannot be answered by referring to the parallels in fact between this Claimant’s case and those of Kiarie or of Mr Byndloss, the other Claimant in that appeal. It must be for the Secretary of State to establish such a decision would have been lawful. In the end I am not convinced that the Secretary of State has done so at this stage. It is of marginal relevance only that the Secretary of State subsequently reviewed the deportation decision and conceded an in-country appeal: many pragmatic decisions are taken in litigation. However, the fact is that in the forthcoming appeal from the fresh deportation decision these issues will be ventilated. In the case of this Claimant he has never lived anywhere but the United Kingdom. There is no evidence of any family member in Jamaica, or any other contact there. It is an unusual circumstance that the principal criminal activity relied on took place when the Claimant was 12 years of age, a matter which would have to be borne in mind when considering the proportionality of his deportation for the purposes of Article 8, even for a period of perhaps a year while an appeal was pending. I bear well in mind that many of these issues may feature in the forthcoming appeal from the fresh deportation decision. I therefore decline on the information before me to reach the conclusion that such a hypothetical decision would necessarily have been lawful and therefore that the error of law was immaterial. That conclusion must not be thought to preclude or indeed influence the decision of any tribunal in the forthcoming appeal.[27]The next proposition from the Defendant is that even if the certification decision was, or is assumed to have been unlawful, that did not render the decision to make the deportation order unlawful. It is accepted by Mr Poole that the certification decision was a precondition for the deportation order.[28]The 2002 Act was amended by the Immigration Act 2014, which came into force on 28 July 2014. Under Section 79 of the 2002 Act:
“79(1) A deportation order may not be made in respect of a person while an appeal under section 82 (1) that may be brought or continued from with the United Kingdom relating to the decision to make the order— (a) could be brought … or (b) is pending.”
Hence the deportation order could only be made following certification. (1) that may be brought or continued from with the United Kingdom relating to the decision to make the order— (a) could be brought … or (b) is pending.”[29]Section 79 goes on to deal with the situation of those liable to automatic deportation as a result of their criminal activity as adults:
“79(3) this section does not apply to a deportation order which states that it is made in accordance with Section 32(5) of the UK Borders Act 2007. (4) but a deportation order made in reliance on subsection (3) does not invalidate leave to enter or remain, in accordance with section 5(1) of the Immigration Act 1971, if and for so long as section 78 above applies.”
[30]As I have said, Sections 79(3) and (4) as set out above deal with automatic deportation arising under the UK Borders Act 2007. In such circumstances, Section 79(4) protects an existing leave to remain and prevents removal. This is the basis for an interesting point made by Ms Hirst for the Claimant. She says there is a lacuna, derived no doubt from the rapid evolution and redrafting of statutes in this area. If her client had been an adult when he committed the offence of manslaughter, then he would have been liable to automatic deportation under the 2007 Act. However, his ILR would be protected during the course of any appeal by Section 79(4). Whereas because he was a child, and therefore any decision to deport is a matter of discretion, his leave to remain enjoys no such protection. Ms Hirst argues this is an anomaly and I am bound to observe that I see some force in that.[31]However, that point cannot carry the Claimant home in this application.[32]Mr Poole argues that even if the certification was unlawful then, absent any argument of bad faith (which does not arise here), the decision to deport was lawful and should stand, even though it was made possible by the erroneous decision to certify and even though it could not now be made. It seems to me this is a difficult argument, in circumstances where I cannot conclude that the relevant legal error was immaterial to the decision to certify.[33]The parties are agreed on the principles to be applied in claims for interim relief where the public interest is engaged. A more stringent approach is to be followed (see NWL Ltd v Woods [1979] ICR 867 and Douglas v Hello! [2001] QB 967). The Claimant argues that the more stringent approach is intended to address cases where the ultimate question at trial will be at least partly fact-based. The situation is different where the Court can resolve an issue of law (see R v Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 AC 603). Ms Hirst says the Claimant will be likely to succeed at trial on this legal issue and the Court is fully equipped to address the matter.[34]Mr Poole agrees with the Claimant’s account of the relevant principles, adding that there is a strong presumption against relief in public law matters, because it is in the public interest that decisions of public bodies are respected unless or until they are formally set aside (see R v MAFF, ex parte Monsanto PLC [1999] QB 1161). Drawing on the Monsanto decision, Mr Poole argues that the balance of convenience is likely to be the key factor for the Court when deciding whether or not to grant interim relief, balancing the interests of the Claimant on the one hand and the public interest in maintaining the decision of the Defendant on the other.[35]Mr Poole further argues that even where a deportation is revoked by the exercise of the discretion of the Secretary of State, such a step does not automatically mean the restoration of ILR. He relies on the decision of the Supreme Court in R (Fitzroy George) v SSHD [2014] UKSC 28. In that case the Appellant had exhausted all routes of appeal from the decision to deport him and was subject to a deportation order. However, he made a further Human Rights application pursuant to Article 8 and succeeded, leading to the revocation of the deportation order. The Secretary of State refused to restore ILR and he challenged that decision. The Supreme Court rejected his claim. Lord Hughes observed, construing Section 5 of the Immigration Act 1971, that the statutory language did not carry the necessary implication of revival of leave: “…because the natural meaning is that revocation takes effect when it happens and does not undo events occurring during the lifetime of the deportation order.” (paragraph 29)[36]In Fitzroy George the Court considered Section 76 of the 2002 Act, which gives the Secretary of State the power to:
“…revoke a person’s indefinite leave to enter or remain in the United Kingdom if the person— (a) is liable to deportation, but (b) cannot be deported for legal reasons”

Lord Hughes went on to conclude that:

“There is no legal symmetry in indefinite leave to remain co-existing with the status of someone whose presence is not conducive to the public good.” (a) is liable to deportation, but (b) cannot be deported for legal reasons”
[37]Based on that decision, Mr Poole argues that if it is not deemed inappropriate or unjust not to reinstate the ILR of an individual whose deportation order has been revoked upon a successful appeal on the basis that the individual is still an individual whose presence is no longer conducive to the public good, then it should not be deemed inappropriate or unjust for this Claimant, whose claim is subject to appeal and whose claim may fail.

Prejudice and the Balance of Convenience

[38]The Secretary of State advances no prejudice to her beyond the necessity to maintain the integrity of public decisions.[39]The Claimant submits there is considerable prejudice to him in the substitution of temporary admission for ILR. He has a restriction preventing him from undertaking employment and he cannot work. He is not eligible (at least not automatically eligible) for bail support under Section 4(1)(c) of the Immigration and Asylum Act 1999 because he was granted temporary admission rather than released from detention on bail: a conclusion confirmed to him by letter from the Defendant of 7 March 2016. Because his ILR was invalidated and he has not been granted any further leave to remain, he is a person “unlawfully in the United Kingdom” and thereby ineligible for support under paragraph 7 of Schedule 3 to the 2002 Act. He is thereby prevented from claiming any of the benefits or support listed in paragraph 1 of Schedule 3. He is prevented from claiming local authority accommodation under Sections 21 or 29 of the National Assistance Act 1948, from claiming services under the Children Act 1989 as a former looked-after child, from claiming support under Section 2 of the Local Government Act 2000, support under the Immigration and Asylum Act 1999, or social care under Part 1 of the Care Act 2014. He is ineligible for housing benefit or for other mainstream benefits, such as jobseekers’ allowance or income support. Under the “right to rent” provisions of the Immigration Act 2014, he is prohibited from taking on a private tenancy.[40]If he remains in his existing immigration status he is potentially entitled for support under Section 4(1) of the Immigration and Asylum Act 1999. That support is available only if the Claimant satisfies the Defendant that he is destitute, has no avenue to other support and it is necessary to grant support in order to avoid a breach of his Human Rights. It further appears to be agreed that the Defendant’s published guidance on Section 4 support states that such support should not be provided where the individual concerned has only a non-protection based claim for leave to remain, even where destitution is the result. That appears to be on the basis that the individual concerned should leave the United Kingdom to avoid destitution. Were that to arise in this case, it would undermine the proposed in-country appeal which the Defendant has undertaken to permit. In the course of the hearing, I enquired of Mr Poole whether the Secretary of State could indicate that a different view would be taken of Section 4 support in relation to this Claimant. Mr Poole was unable to give any such indication. His instructions enabled him to say only that any Section 4 application would be viewed on its merits.[41]The Claimant relies on the fact that he is subject to conditions of his criminal licence which continues until February 2019, beyond the anticipated period of the current appeal. The licence includes a condition to reside at an approved address. Prior to the deportation order the Claimant was offered accommodation in approved premises but that offer was withdrawn in November 2015 because the Claimant had by then turned 21 and was no longer engaged in any education, the latter as a result of the immigration detention. On his release from detention, the Claimant was provided with emergency accommodation to avoid homelessness. The current accommodation will last until early September 2016, after which it is to be anticipated the Claimant may be evicted. He is being charged rent at an extremely modest rate, but he has no means of paying it and is therefore in arrears.[42]The Claimant is precluded from education as he has no access to funds, even to travel. He has had the offer of work from the Millwall Community Trust but he cannot take it up. Nor is he able to travel to report to the immigration authorities or his probation officer. His journeys to his solicitor’s office have been paid for by his lawyers.[43]In response to these particulars, the Secretary of State simply suggests that the facts do not come close to “establishing destitution and [do] not demonstrate sufficient prejudice to outweigh the public interest in maintaining public decisions in a matter of this kind”.

Conclusions

[44]It is agreed that the deportation decision taken on 28 October 2015 was enfranchised by a legal error. For the reasons I have already given, I am unable to conclude that that error was immaterial. The removal of the Claimant’s ILR was an automatic consequence of the decision to deport. I therefore conclude that the integrity of public administration is best served by an Order to restore the Claimant’s ILR.[45]I accept from the Secretary of State the proposition that, at least where Section 76 of the Nationality, Immigration and Asylum Act 2002 is concerned, the revocation of the deportation order does not imply automatic restoration of a previously existing Indefinite Leave to Remain. However, this Claimant is not in the situation of Mr George and may never be in such a situation.[46]On the facts of this case it would seem to me appropriate and a correct application of the modified American Cyanamid approach, that the Claimant should have the restoration of ILR until the resolution of his forthcoming appeal, putting him in the same position in relation to his immigration status as he would have been if(1) he had been an adult convicted of such a serious offence and subject to automatic deportation, or(2) the decision on certification in his case had been approached without legal error.[47]I wish to stress that nothing in this judgment should be thought to affect either way the outcome of the Claimant’s forthcoming appeal against the fresh decision taken earlier this month.

Cited in 2 later judgments