The application of paragraph
398
8. The First-tier Tribunal Judge considered that paragraph 398(a) had no application since the relevant offence s for her purposes were the 2013 convictions for which the appellant received a sentence of 10 months imprisonment. Hence, neither 398 (a) , (4 years imprisonment) nor paragraph 398(b) , ( imprisonment of less than 4 years but at least 12 months) had any application. This resulted in the Judge treating the appellant as falling within paragraph 398(c) which, f o r our purposes, was as ‘ a persistent offender who shows a particular disregard for the law
’ , a classification which the appellant himself d oes not (and, of course, cannot) seek to argue against. 9. The consequences of an application under paragraph 398(a) are striking : 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 . They represent a practical and linguistic up-lift from the ‘ exceptional circumstances ’ originally envisaged in paragraph 398. 10. Mr Lemer conceded that he was not able to identify any very compelling circumstances sufficient to outweigh the pressure in favour of the appellant’s deportation. Hence, if the appeal is to be assessed by reference to paragraph 398(a), he accepts that the appellant loses his appeal. 11. In contrast, the application of paragraph 398(c) – the persistent offender categorisation – allows an appellant to rely upon both paragraph 399 and 399A: 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 seven years immediately preceding the date of the immigration decision; and in either case
(a) ( it would not be reasonable to expect the child to leave the United Kingdom ) [it would be unduly harsh for the child to live in the country to which the person is to be deported]; and
(b) ( there is no other family member who is able to care for the child in the United Kingdom ) [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, ( or in the UK with refugee leave or humanitarian protection , ) and ( (i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and (ii) there are insurmountable obstacles to family life with that partner continuing outside the United Kingdom )
[(i) the relationship was formed at a time when the person 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]. 399A. This paragraph applies where paragraph 398(b) or (c) applies if – (
(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family ) with the country to which he would have to go if required to leave the UK; or (b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK. )
[(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]. 12. Mr Johnson is unable to rely upon the relationship he has with either of his partners for the reasons that will later emerge . There is no suggestion that the children will be expected to travel to Sierra Leone which the respondent concedes would be unduly harsh for them. The issue is, therefore, reduced to a consideration of whether it would be unduly harsh the child to remain in the UK without the person who is to be deported. 13. For the reasons that follow, Mr Johnson’s appeal must fail at the first hurdle. 14. Mr Lemer submitted that paragraphs 398(a) and 398(c) were al ternatives and the Secretary of State was required to se l ect which of the two routes s he chose to pursue. He based this submission on the effect of the words of s.117C (7)) of the Nationality, Immigration and Asylum Act, 2002 . 15. Part 5A of the 2002 Act was introduced by s.19 of the Immigration Act 2014 setting out criteria, pursuant to s.117A to which the court or tribunal must have regard (amongst other matters):
117CArticle 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.
(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
.
16. Mr Lemer submitted that the underlying decision to deport the applicant was the decision made in January 2014 to deport the appellant as a result of the 2013 convictions . Pu rsuant to s.117C (7), the only consideration that the appellant was permitted to take into account was the conviction which result e d in a sentence of 10 months imprisonment. This was because the statutory criteria set out in s.117C are limited to
the reason for the decision
being
the offence or offences for which the criminal has been convicted.
17. This requires consideration of the decision letter. On page 3 of 6 of the letter, under the heading ‘ S
entence length ’ the decision maker set out in fu ll all three limbs (sub-paragraphs (a), (b) and (c)) of paragraph 398 and then continued:
As stated earlier in this letter, deportation action is being considered against you on conducive grounds in light of your 2013 conviction s for making off without payment, driving while disqualified and using a vehicle without insurance. 18. Mr Lemer relied on this as supporting his submission (as well as the introductory paragraph of the letter which recited the 2013 convictions under the heading ‘ Liability to Deportation ’ but omitted reference to the 2007 convictions until later on the same page when it was mentioned under ‘ Background ’. The submission fails to take into account the words that immediately follow:
H owever, it is noted that you were sentenced in 2007 to 4 years imprisonment for possessing controlled drugs with intent to supply. Paragraph 398 (A) of the rules is therefore applicable when considering Article 8 in your case .
The I mmigration Rules state that it will only be in exceptional circumstances that a person's right to family and/or private life would outweigh the public interest in seeing a person deported where they had been sentenced to a period of imprisonment of at least four years.