Case No. UKUT-00330-(IAC)

[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