Exceptional circumstances
C onsideration has been given to your personal circumstances, as well as those family members affected by the decision to deport you. It has been concluded that the reasons given below that there are no exceptional circumstances in your case which would outweigh the public interest in seeing you deported. 19. Thereafter, due consideration is given to the appellant's family and private life which include d specific reference to his daughters and partners and C . 20. Insofar as Mr Lemer seeks to argue that the respondent is restricted to a consideration of the 2013 convictions , he misconstrues the words of s . 117C ( 7 ) which does not contain the limitations he seeks to impose. If, as a matter of fact, he seeks to construe the decision letter as confining itself to a consideration of the 2013 convictions , he is wrong to do so as the decision maker would have had no reason to set out paragraph 398 ( a ) and then make reference to the 2007 convictions unless the respondent was intending to rely upon them . 21. Finally, it makes no sense to operate a statutory restriction on the criteria that a decision maker must have regard to w he n, on any view, the earlier offending is a material factor. Mr Lemer did not submit that the decision maker was excluded altogether from reliance upon the 2007 convictions . Rather h e argued that the Secretary of State was limited to her consideration of them as part of the (admitted) element found in paragraph 398 ( c ) that the appellant was a persistent offender who had shown a particular disregard for the law. It seems to us that it is sophistry to construe the appellant’s sentence of 4 years as an inadmissible criterion for the purposes of paragraph 398(a) but admissible as a criterion in paragraph 398(c). 22. Mr Lemer also argued that the structure of paragraph 398 only permitted the respondent to rely upon one of the three classifications ( a ) to ( c ). He submitted that the respondent had a choice as to which route under paragraph 398 he intended to follow in securing a foreign criminal ’ s removal. In doing so, he relied upon the use of the word ‘ or ’ at the end of subparagraph ( b ). 23. We reject this argument. The dra ft sman envisaged option s when creating the three categories set out in paragraph 398. Had the dra f tsman use d the word ‘ and ’, the effect would have been that each of the three requirements had to be satisfied. That would have been impossible since the same person could not both have been sentenced to at least four years imprisonment as well as less than four years. Whilst the use of the word ‘ and ’ connotes cumulative or conjunctive requirements; the word ‘ or ’ connotes alternatives but is silent on whether the person qualifies under one or more of the specified categories. 24. H e submitted that the Secretary of State elected to apply paragraph 398(c) – the persistent offender route – and did not choose to invoke paragraph 398(a). This, h ow ever, is a clear misreading of the deci s ion letter in which the Secretary of State expressly relied upon both paragraph 398(a) and the fact that the appellant had been sentenced to a period of 4 years imprisonment as well as the fact that the appellant was a persistent offender. 25. No assistance was provided by Mr L emer ’s reliance on the decision in the Court of Appeal in YM (Uganda) v Secretary of State for the Home Department
[2014] EWCA Civ 1292 (10 October 2014) in which Counsel for the Secretary of State had submitted that sequential offending which resulted in a total period of imprisonment of over four years fell within paragraph 398(a). Aikens LJ (with whom the others members of the Court agreed) rejected that interpretation. He stated:
43. The wording of Rule 398 in its 2012 version is unsatisfactory because, although it is meant to be part of a "complete code" it does not deal with the very many different possible circumstances that might arise. Nonetheless, the wording refers to "an offence" not more than one. Even if the singular included the plural, it would be necessary to import more words into Rule 398(a) if the aim was to take account of all the person's offences historically, then tot up all the sentences of all those offences, so as to make a grand total of a period of imprisonment which, in total for a number of different offences on different occasions, amounted to at least four years. I am not prepared to manipulate the wording of Rule 398(a) to such an extent to produce that result. We have to construe the words sensibly in their normal and natural meaning.
44. Therefore, in my view, only one offence at a time has to be taken into account and the only question is whether, for that particular offence, the sentence was more than 4 years. 26. This reasoning is consistent with the Secretary of State’s approach in the present appeal based on the fact that the appellant had been convicted of an offence for which he had been sentenced to at least 4 years imprisonment. 27. W e recognise the possibility of an appellant being sentenced to 4 years imprisonment as a young man and subsequently succeeding in his appeal on A rticle 8 grounds and thereafter leading a blameless life for the following 40 or 50 years until a second short period of imprisonment triggers the consideration of paragraph 398 ( a ). In such a case, however, the significance of his earlier sentence would have receded to the point of its being immaterial to the consideration of what should happen to the appellant following his second conviction. We see this as a paradigm example of a very compelling circumstance sufficient to protect the appellant against expulsion. 28. In most circumstances, however, a successful appeal on human rights grounds, notwithstanding a period of imprisonment of four years, can only have been predicated upon the appellant satisfying the T ribunal that he has turned the corner and that he no longer represents a risk to society. In many cases it will have been accompanied by an express warning from the Secretary of Sta te or the T ribunal that further offending would not be tolerated. In the present appeal this appears to be what the appellant's partner was suggesting when, in paragraph 45 of the de cision, it is said that she could not remember if the appellant had made any promises at the 2009 hearing but she assumed he had. It is however self-evident that , in order to succeed in such an appeal , the appellant would have had to have satisfied the T ribunal that there was to be no more offending. A subsequent conviction would, save in exceptional circumstances, confound this prediction acting, as it were, like the imposition of a suspended sentence following reoffending. We do not therefore, see anything intrinsically u nfair in the respondent or the T ribunal applying the words of paragraph 398( a ) to all cases in which an appellant has been sentenced to a period of imprisonment of at least four years irrespective of whether it was a later offence that triggered a decision to deport him. 29. Any individual imprisoned for such a significant period of time must have it in his mind that he is living on borrowed time , as it were, and that any further offending may have the consequence that the T ribunal revisit s an earlier appeal at which he successfully resisted deportation. 30. Finally, the appellant ’s con tention that, fo r the purposes of paragraph 398 ( a ) the offence that triggers deportation can only be the most recent offending is nowhere to be found in the words of the paragraph and the expression ‘ they have been sentenced ’ . Had it been the intention to limit the operation of the subparagraph in the manner suggested, it would require drastic rewriting.