Case No. UKUT-00628-(IAC)

[2015] UKUT 00543 . That was indeed a distinction noted and relied upon by Judge Pullig at [168]. 34. However (a) and (b) are only of relevance if section 117C applies, since if it does not, nothing material arises, in this case, from a finding that the appellant falls within the definition at section 117D(2) of a “foreign criminal”. 35. I turn, therefore, to the respondent’s assertion in the grounds that if the appellant is a “foreign criminal” as defined in section 117D(2), then section 117C applies. As I pointed out to Mr Norton, I have difficulty following such a proposition, given the wording of section 117 and considering that the appellant is not the subject of deportation proceedings. 36. It is indeed the case that the heading for section 117C, “Article 8: additional considerations in cases involving foreign criminals”, suggests that the ensuing considerations apply in all cases involving “foreign criminals”, as defined in section 117D(2), and to that extent there is arguably some force in the respondent’s assertion. However it seems to me that the actual provisions within the body of section 117C do not, in fact, permit of such an interpretation, given that they specifically refer to deportation, commencing at section 117C(1) with the statement that “ The deportation of foreign criminals is in the public interest ” and continuing in sections 117C(2) to (7) thereafter. 37. That section 117C is applicable only in deportation cases is made clear in section 117A(2) which, in directing the court or tribunal to the considerations involved when looking at the public interest question, clearly distinguishes between those cases that involve deportation from those that do not. Section 117A(2)(b) provides for a distinct category of cases, providing that, in considering the public interest question, the court or tribunal must have regard to the considerations listed in section 117C “ in cases concerning the deportation of foreign criminals ”. 38. Accordingly, irrespective of whether or not an appellant may fall within the definition of a “foreign criminal” in section 117D(2), the provisions of section 117C of the 2002 Act only apply in cases involving deportation. 39. In the case of the appellant, he is not subject to deportation proceedings and is to be removed under section 10 of the Immigration and Asylum Act 1999. He does not, given the length and nature of his current and past sentences 1 , fall within the definition of “foreign criminal” under section 32(1) of the UK Borders Act 2007 (as opposed to the definition in section 117D(2) of the 2002 Act), and could not therefore be subject to automatic deportation. Nevertheless it was always open to the respondent to make a decision to deport him on conducive grounds under section 3(5) of the Immigration Act 1971. Indeed it is relevant to note that the police officer, in his witness statement (MG11), concluded with a submission that the appellant’s presence in the United Kingdom was not conducive to the public good. However, for whatever reason she had, the respondent chose not to exercise her powers to make a decision on that basis and chose instead to issue a removal decision under section 10. 40. It is relevant to mention at this point that, whilst Mr Norton’s submission was that it was implicit within section 117C that it could apply in circumstances such as those of the appellant, it has never been suggested that the definition of “deportation” includes administrative removal. That the two terms and their effect are entirely distinct is made clear in the provisions of Part 13 of the immigration rules, in particular paragraph 363A, which states that “363A. Prior to 2 October 2000, a person would have been liable to deportation in certain circumstances in which he is now liable to administrative removal. However, such a person remains liable to deportation, rather than administrative removal where: (02.10.2000 Cm 4851) (i) a decision to make a deportation order against him was taken before 2 October 2000; or (02.10.2000 Cm 4851) (ii) the person has made a valid application under the Immigration (Regularisation Period for Overstayers) Regulations 2000. (02.10.2000 Cm 4851)” 41. Accordingly, as a result of the respondent’s decision not to pursue deportation proceedings, section 117C could not and cannot apply to the appellant. It was on that basis that Judge Pullig, taking account at [167] of section 117A(2), properly conducted his assessment of the public interest by reference only to section 117B and, in so doing, clearly recognised the limitations imposed therein, as seen at [168], [175] and [176] when considering the weight to be attached to the public interest and the interests of the appellant’s children. It is very likely, considering the judge’s findings and in particular those at [175] and [176], and considering the reluctance he expressed in allowing the appeal, that had this been a deportation case, the outcome of the appeal would have been different. It is also very likely that without the provisions in section 117B(6), the outcome would have been different. 42. However the judge was only able to determine the appeal on the basis of the decision made by the Secretary of State and in accordance with the statutory provisions approved by Parliament. Accordingly he determined the appeal on the only basis that he could and the challenge made by the respondent to his decision in that respect is therefore simply unarguable. Furthermore, on the basis upon which the challenge was put by the respondent, the fact that the judge made no specific finding as to whether the appellant was a foreign criminal as defined in section 117D(2) is immaterial. 43. Mr Norton accepted before me that the challenge was only put on the narrow and limited basis of the applicability of section 117C. Accordingly that has to be the end of the matter. Judge Pullig, having properly considered the limited basis upon which he was able to determine the appeal, reached a decision that he considered to be inevitable, but was in any event entirely open to him on the evidence before him. In the absence of any challenge to his assessment under section 117B, the respondent’s case, as put in the grounds and before me by Mr Norton, has no merit. 44. The only question for me to determine is whether or not Judge Pullig made any errors of law in his decision. It is not for me to consider the merits of the case. For the reasons given above, and in particular considering that the judge was only able to determine the appeal on the basis of the decision made by the Secretary of State and in accordance with the statutory provisions approved by Parliament, I find that the respondent has failed to establish that Judge Pullig erred in law in allowing the appeal on the basis that he did.