Case No. UKUT-00330-(IAC)

(the “2002 Act”). This is reproduced in Appendix 1 to this judgment. The Secretary of State’s policy is contained in paragraphs A398, 398, 399 and 399A of the Immigration Rules. These provisions are reproduced in Appendix 2. 13. As noted above, there was earlier consideration of how one aspect of the decision in Bah might impact on the resolution of this appeal. This concerned the exhortation in Bah that the first step in deportation appeals not involving the 2007 Act is to consider whether the Appellant is liable to be deported on the grounds set out by the Secretary of State, an exercise which normally involves an examination by the Tribunal of: (a) whether the material facts alleged by the Secretary of State are accepted and, if not, made out to the civil standard flexibly applied; (b) whether on the facts established and viewed as a whole, the conduct, character or associations of the appellant reach such a level of seriousness as to justify a decision to deport; and (c) in considering (b), taking into account any lawful policy of the Secretary of State relevant to the exercise of the discretion to deport and whether the discretion has been exercised in accordance with such policy. The overtly prescriptive nature of the decision in Bah involves two further steps. First, subject to the outcome of the aforementioned exercise, the Tribunal will then consider any human rights or protection objections to deportation and, finally, will consider whether the “ discretion to deport ” has been exercised in accordance with the applicable immigration rules. 14. The proposition that the decision in Bah was made in the context of a particular legal framework then extant but long superseded seems to us unexceptional. The main constituent elements of such framework were section 3(5) and section 5(1) of the 1971 Act and paragraph 364 of the Immigration Rules. This is not the legal/policy framework applicable to the remaking of the FtT’s decision hereby undertaken by us: see [12] above. The transformation of the legal landscape postdating Bah has been substantial. It has three features in particular. First, the introduction of new primary legislation in the form of Part 5A of the 2002 Act. Second, the repeal of paragraph 364 of the Rules (which took effect on 9 July 2012 coupled with the introduction of the new provisions of the Immigration Rules assembled in Appendix 2, with effect from 28 July 2014. Third, the advent of a series of binding decisions of the Court of Appeal relating to the construction and impact of the new primary legislation provisions and their interplay with the Rules, crowned by the recent decision of the Supreme Court in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] UKSC 60 and R (Agyarko) v Secretary of State for the Home Department [2017] UKSC 11. 15. Stated succinctly, the decision in Bah was based on a provision of primary legislation and a provision of the Immigration Rules neither of which has any application whatsoever to the exercise of the Upper Tribunal remaking the decision of the FtT. The test enshrined in Bah namely whether on the facts established viewed as a whole, the conduct, character or associations of the appellant reach such a level of seriousness as to justify a decision to deport no longer applies. It has been overtaken and extinguished by the significant developments noted above. While we invited Ms Rutherford (representing the Appellant) to formulate a submission to the contrary, she struggled to do so, understandably. The submissions of both representatives were, unavoidably, directed to the new statutory and policy 9ie Rules) regime which we must apply. 16. Next, we would highlight that the main elements of the factual framework to which we shall apply the governing legal rules are largely uncontroversial. We summarize the first elements thereof thus: (a) The Appellant is a citizen of Jamaica, now aged 50 years. (b) His initial presence in the United Kingdom, from April 1997 to December 1999 was lawful, pursuant to visitors and student visas. (c) The Appellant’s presence in the United Kingdom has been unlawful since 01 January 2000. (d) He was convicted on 20 September 2001 of wounding with intent to do grievous bodily generating a sentence of four years’ imprisonment. (e) The Appellant married a British Citizen on 23 September 2000. He divorced in 2011. There is a child of that relationship and thus the Appellant is the father of a British citizen child now aged 15 years. (f) The previously extant application for contact that was before the Family Court was determined by that Court on 24 October 2016. 17. The factual matrix is augmented as follows. In response to the Tribunal’s direction, the Appellant’s solicitors have provided, inter alia , certain Orders and directions of Family Courts. The most recent Order is dated 24 October 2016. Considered in conjunction with previous Orders and directions, this discloses that the Appellant has had no contact with his daughter during most of her life, neither she nor her mother wishes contact to be established and the only contact permitted by the Court is of the indirect variety by “ letters and cards including gifts twice per year (birthdays and Christmas) ”. Furthermore, the Appellant is prohibited from making any further Children Act Application until his daughter leaves school in 2018 without the permission of the Court. This represents the outcome of the third contact application which the Appellant has made since 2011. There is no evidence of anything comparable or, indeed, of any involvement by the Appellant in his daughter’s life during the previous nine years, beginning with the year of her birth. 18. The main elements of the period 2002 – 2012 have already been noted. The stand out milestones belonging to this period are: (g) The Secretary of State’s decision dated 13 June 2003 to remove the Appellant from the United Kingdom on account of his status of illegal entrant. (ii) The FtT’s decision of 11 September 2003 dismissing the Appellant’s appeal against refusal of asylum. (iii) The Appellant’s second application for asylum, dated 10 November 2010. (iv) The deportation notices – evidently stimulated by the asylum application – of 16 September 2011 and 14 February 2012. (v) The asylum interview held on 30 January 2012. (vi) The asylum refusal decision dated 04 September 2012, coupled with an assessment that the deportation of the Appellant would not infringe any of his Convention Rights, consideration having been given to paragraphs 396, 398 and 399A of the Rules, in conjunction with Article 8 ECHR and s55 of the Border, Citizenship & Immigration Act 2009. 19. At this juncture we would highlight another aspect of the “ Bah diversion” considered particularly in [13] – [15] above. The belief (or expectation) that the Upper Tribunal, in the context of this appeal, would adjudicate on the lawfulness of the Secretary of State’s decision in 2003 to remove the Appellant is evident from everything we have reviewed. It was plainly misconceived. The Upper Tribunal has at no time been seized of any challenge, regular or otherwise, to the 2003 removal decision. That removal decision was the subject of the appeal determined in September 2003. Furthermore, while that decision, now of some 14 years vintage, has at no time been implemented neither the parties’ representatives nor the Tribunal have identified any legal rule, statutory or otherwise, suggesting that the 2003 decision has lapsed with the effluxion of time. Absent any such rule, we consider that it remains presumptively lawful, giving effect to the omnia praesumuntur principle. 20. Finally, we turn to apply the legal framework to the factual matrix outlined above. As we have made clear, the applicable legal framework is not that in vogue at the time of the Secretary of State’s decision or the FtT’s determination. Nor is it the legal framework underpinning the decision in Bah . Rather, with the passage of time, the governing legal framework has evolved significantly and now comprises the components set forth in [12] above. This formulation of the legal framework governing the determination of this appeal is dictated by the decision of the Court of Appeal in YM (Uganda) [2014] EWCA Civ 1292 at [36] – [39]. 21. We give effect firstly to Part 5A of the 2002 Act, insofar as relevant: (i) We begin by acknowledging the public interest in the maintenance of effective immigration controls: section 117B(1). (ii) There is no evidence that the “English speaking” public interest in section 117B(2) is engaged. (iii) There is no evidence that the “ financial independent ” public interest in section 117B(3) is engaged. (iv) As regards section 117B(4), the Appellant has been progressively strengthening and expanding his private life in the United Kingdom throughout the entirety of a sojourn which has been unlawful since January 2000. On behalf of the Secretary of State, it was expressly acknowledged that the Appellant’s case belongs to the upper level of the “little weight” spectrum: see Kaur (Children’s Best Interests/Public Interest Interface) [2017] UKUT 00014 (IAC). (v) As regards section 117B(5), the Appellant’s immigration status in the United Kingdom has at all times been precarious, dating from his initial entry in April 1997, some 20 years ago. The same “little weight” assessment as above applies. (vi) The public interest in the deportation of foreign criminals is acknowledged: section 117C(1). (vii) The Appellant’s offending belongs to the highest of the categories established by section 117C. (viii) The public interest requires the Appellant’s deportation unless there are “ very compelling circumstances, over and above those described in Exceptions 1 and 2 ”: section 117C(6). (ix) The Appellant cannot bring his case within the ambit of either Exception 1 or Exception 2. 22. At this juncture we turn to consider the relevant provisions of the Rules, reminding ourselves of the emphasis in Hesham Ali , these have the status of neither statutory provisions nor legal rules of any kind. They are, rather, an expression of the Secretary of State’s policy to which substantial weight must be attributed. Paragraphs 398, 399 and 399A are, in a sense, a self-denying ordnance to which the Secretary of State must give effect, subject to and in accordance with established principles of public law, having opted for the mechanism of a published policy in this way. We have reproduced these provisions in Appendix 2 above. In brief compass, these provisions of the Rules yield the following analysis and conclusions in this case: (i) Paragraph 398(a) applies, as the sentence of imprisonment was one of four years, with the result that the deportation of the Appellant is presumptive conducive to the public good and in the public interest. (ii) Neither paragraph 398(b) nor 398(c) applies. (iii) The next question is whether paragraph 399 of 399A applies: this was not, properly, argued and we answer this in the negative in any event. (iv) Thus the question becomes, per paragraph 398: is the public interest in deporting the Appellant outweighed by “ other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A ”? The submission of Ms Rutherford is that this test is satisfied by reason of the extreme delay on the part of the Secretary of State during the period 2002 – 2012, the hallmarks whereof were incompetence and maladministration. 23. We reject this argument. On the one hand, the delay on the part of the Secretary of State can only be characterised egregious, is exacerbated by the absence of any explanation and is presumptively the product of serious incompetence and maladministration. However, on the other hand, the case against the Appellant is a formidable one: the public interest favours his deportation; the potency of this public interest has been emphasised in a series of Court of Appeal decisions; the Appellant’s case does not fall within any of the statutory or Rules exceptions; the greater part of his life was spent in his country of origin; there is no indication of a dearth of ties or connections with his country of origin; he is culturally and socially integrated there; his family life in the United Kingdom is at best flimsy; and most of his sojourn in the United Kingdom has been unlawful and precarious. We take into account all of these facts and factors in determining whether very compelling circumstances have been demonstrated. This is a self-evidently elevated threshold which, by its nature, will be overcome only by a powerful case. In our judgement the maladministration and delay of which the Secretary of State is undoubtedly guilty fall measurably short of the mark in displacing the aforementioned potent public interest in the Article 8(2) proportionality balancing exercise. We conclude that the Appellant’s case fails to surpass the threshold by some distance. 24. This analysis and conclusion are in no way affected by the findings of the FtT noted in [11] above. The decision of the FtT is locked in the legal time warp in which it was made. The legal landscape within which we remake its decision is the significantly different one which we have outlined. Decision 25. We remake the decision of the FtT by dismissing the Appellant’s appeal. THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER 24 March 2017 APPENDIX 1 Part 5A of the Nationality, Immigration and Asylum Act 2002