Case No. UKUT-00629-(IAC)

have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years; (b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or (c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law, the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A. ” Paragraph 399 “ 399. This paragraph applies where paragraph 398 (b) or (c) applies if – (a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK , and (i) the child is a British Citizen; or (ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case (a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and (b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or (b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK , and (i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and (ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and (iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.” Paragraph 399A “ 399A. This paragraph applies where paragraph 398(b) or (c) applies if – (a) the person has been lawfully resident in the UK for most of his life; and (b) he is socially and culturally integrated in the UK ; and (c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported. ” 9. A s the Respondent ’s personal and family circumstances are rehearsed adequate ly in the decision of the FtT, they need not be repeated here. The Deportation of Foreign Criminals 10. In all cases belonging to this sphere, the contest is between the several public interests favouring deportation – deterrence, protecting the public, maintaining firm immigration control and promoting the economic wellbeing of the nation – and the private, personal interests of the offender and , frequently, the members of his family circle. The potency of the public interest in play was emphasised resoundingly by the Court of Appeal in SS ( Nigeria ) v SSHD [2013] EWCA Civ 550. This theme has continued to chime in further decisions of the Court of Appeal. In LC ( China ) v SSHD [2014] EWCA Civ 1310, it was stated, at [21]: “ The fact that they are British nationals is undoubtedly of importance, since it carries with it the right to live and be brought up here, but in this case the children appear to have formed no particular attachment to this country and are of an age at which they can be expected to integrate into Chinese society with less difficulty than might otherwise have been the case. However, they are not being required to leave the UK , since their mother has indefinite leave to remain and can continue to care for them here, if she so chooses. If the appellant is deported, it will be for him and his partner to decide whether it is in the children’s best interests to remain here with her or move to China as part of a united family. In the end, however, this case turned largely on the balance struck between two competing interests: the public interest in the deportation of the appellant and the children’s interests in remaining here with both parents. ” The judgment continues, at [24]: “ The starting point for any such assessment is the recognition that the public interest in deporting foreign criminals is so great that only in exceptional circumstances will it be outweighed by other factors, including the effect of deportation on any children. However, in cases where the person to be deported has been sentenced to a term of impris onment for less than four years and has a genuine and subsisting parental relationship with a child under the age of 18 years who enjoys British nationality and is in the UK, less weight is to be attached to the pubic interest in deportation if it would not be reasonable to expect the child to leave the UK and there is no one else here to look after him. By contrast, however, where the person to be deported h as been sentenced to a term of four years’ imprisonment or more, the provisions of paragraph 399 do not apply and accordingly the weight to be attached to the public interest in deportation remains very great despite the factors to which that paragraph refers. It follows that neither the fact that the appellant’s children enjoy British nationality nor the fact that they may be separated from their father for a long time will be sufficient to constitute exceptional circumstances of a kind which outweigh the public interest in his deportation. The appellant’s children will not be forced to leave the UK since, if she chooses to do so, their mother is free to remain with them in this country . ” 11. Most recently, in PF (Nigeria ) v SSHD [2015] EWCA Civ 251, the Court of Appeal, having emphasised the supreme importance of the tribunal identifying exceptional, or compelling, factors sufficient to outweigh the public interest in deportation, stated at [43]: “ I fully recognise that if the Judge’s factual findings are well founded, they will be a real and damaging impact on his partner and t he children; but that is a common consequence of the deportation of a person who has children in this country. Deportation will normally be appropriate in cases such as the present, even though the children will be affected and the interests of the children are a primary consideration. ” We are also mindful of the statement of the Court of Appeal in SSHD v MA Somalia [2015] EWCA Civ 48, at [17], that – “ …. t he scales are heavily weighted in favour of deportation and that something very compelling is required to outweigh the public interest in deportation. ” 12. The Secretary of State’s argument also invoke s the recent decision of the Upper Tribunal in Che ge (Section 117D – Article 8 – a pproach) [2015] UKUT 00165. This deci ded , inter alia , that in applying the new provisions of Part 5A of the 2002 Act, the Tribunal should adopt the following sequence: (a) Is the appellant a foreign criminal as defined by section 117D(2)(a), (b) or (c)? (b) If “yes”, does he fall within paragraph 399 or 399A of the Immigration Rules? (c) If “no”, are there very compelling circumstances over and above those falling within paragraphs 399 and 399A? 13. It is common case that the Respondent is a “ foreign criminal ” within the meaning of section 117D(2 ). Furthermore, paragraph 398 of the Rules applies to this case because the Respondent was sentenced to imprisonment for a period exceeding four years. As a result the Respondent , on appeal to the FtT , could not succeed simply by satisfying paragraph 399 or 399A of the Rules. B y paragraph 398 the Secretary of State , in the first place and the Judge , on appeal , were both obliged to do two things: first, to consider whether paragraph 399 or 399A applies and, if yielding a negative answer, then to consider whether the public interest in deportation wa s outweighed by other factors. This entailed the application of the following test: are there very compelling circumstances over and above those described in paragraphs 399 and 399A? The Immigration Rules Issue 14. The gravamen of the argument on behalf of the Secretary of State is that the Judge erred in law by considering paragraphs 399 and 399A en route to his conclusions. W e consider this argument to be fundamentally flawed. Logic, reason and common sense dictate that paragraphs 399 and 339A must be considered in the application of the “over and above” test enshrined in paragraph 398. Indeed a failure to do so, if material, would itself be an error of law. In cases where, as here, the “ over and above ” test is engaged, paragraphs 399 and 399A provide the bridge, or link, between the application of the test and the resulting outcome. Giving effect to the ordinary and natural meaning of the three provisions of the Rules under scrutiny, we consider that: (a) The first qu estion is whether, having regard to the finding s and evaluative assessment s made , the Secretary of State (in the first place) and the FtT (on appeal) considers that either paragraph 399 or 399A of the Rules applies . ( b) If the above exercise yields the assessment that neither of the said paragraphs applies, it is then necessary to decide whether there are very compelling circumstances over and above those described in paragraphs 399 and 399A. 15. It requires no manipulation or distortion of the text of the FtT’s decision to conclude that the Judge, in deciding the appeal, gave effect to the approach which we have espoused above and to that contained in Chege . Mr Melvyn, on behalf of the Secretary of State, was driven to accept that the Judge’s decision is replete with correct self-direction s in law. We remind ourselves of the scope for intervention of an appellate tribunal in cases of this kind. This, it may be observed, is sometimes overlooked. In particular, in practice, it is not addressed in the Secretary of State’s grounds of appeal. Nor is it routinely addressed in grant s o f permission to appeal to this Tribunal . Indeed one may also observe , with deference , that in a number of recent decisions of the Court of Appeal the governing principles do not feature. 16. These principles are based in authority of unmistakable pedigree and binding force. They are contained in Edwards v Bairstow [1956] AC 14. While their Lordships were not uniform in their formulation of the governing principle, it suffices to recall what Lord Radcliffe stated (at page 9 ): “ I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. ” The test for unreasonableness, which later became known as perversity , or irrationality, is whether the decision under appeal is one which no person acting judicially and properly instructed on the relevant law could reasonably have made. The restraint which an appellate court must exercise, having regard to these principles, features in the decision of the House of Lords in Moyna v Secretary of State for Work and Pensions [2003] UKHL 44. In R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport [1993] 1 WLR 23, Lord Mustill offered the following pithy summary (at 32 – 33): “ In such a case the Court is entitled to substitute its own opinion for that of the person to whom the decision has been entrusted only if the decision is so aberrant that it cannot be classed as rational. ” Decisions which fall “ within the permissible field of judgment ” do not satisfy this elevated hurdle. 17. The second question which arises is whether the Judge committed any error of law in his application of the correct legal test. We find no such error. In the context of the present appeal there is no suggestion that the Judge left out of account any material evidence . N or can it be suggested that the Judge allowed anything extraneous to enter the equation . The touchstone for intervention is irrationality. This Tribunal can find an error of law in the context of this appeal only if the outcome of the application of the correct legal test is vitiated by irrationality. Th is is a self-evidently elevated threshold, one which is rarely satisfied in practice and which , interestingly , does not feature expressly in many of the recent Court of Appeal decisions belonging to this sphere. The test for irrationality has been formulated in a variety of tried and trusted ways. Was it reasonably open to the Judge taking into account all material factors and disregarding everything extraneous to reach the conclusion under challenge? Another formulation is: did his conclusion fall within the band , or range , of conclusions reasonably open and available to him? T here is also the repeated admonition to appellate courts and tribunals that what they might have done as a first instance court or tribunal is not in point . Thus while it may be that not every first instance immigration judge would have reached the conclusion under challenge in this appeal this does not vitiate in law the deci sion.