When a “foreign criminal” wins an appeal against a deportation order made by the Secretary of State, it’s routine for the government to appeal, regardless of the merits of the case.
Parties aren’t supposed to come to the Court of Appeal just because they disagree with the findings of the Upper Tribunal. Usually by then, the case has been litigated twice and parties are forbidden a further bite at the cherry. The test for the grant of permission to appeal against a determination by the Upper Tribunal is a high one, at least in legal theory, for that reason.
Unfortunately, the impression one gets from recent decisions is that the Secretary of State appears to have an easier ride than claimants when trying to get the Court of Appeal to intervene in cases where she simply disagrees with the Upper Tribunal’s findings.
In a number recent cases the Court of Appeal has allowed deportation appeals by the Secretary of State, seemingly on the grounds that the Court took a different view to the Upper Tribunal on the facts. That isn’t the purpose of the Court of Appeal, which should exercise caution before reversing the factual evaluations of trial judges (see Lord Wilson’s comments in B (a Child), Re  UKSC 33 at § 41).
Below are a few of the recent uninspiring judgments in this area (reviewed in greater detail by Alice Muzira here).
- BL (Jamaica) v SSHD  EWCA Civ 357 – where the Court picked apart the factual findings of President McCloskey of the Upper Tribunal (§ 50), overturned his decision but nowhere in the judgment does the Court expressly identify the Tribunal’s legal error.
- SSHD v CT (Vietnam)  EWCA Civ 488 – again, the Court set aside the factual findings without expressly identifying how the Tribunals had gone wrong in law. The Court does not set out in detail the Tribunal’s findings and makes no reference at all to the Upper Tribunal’s decision. The language of the Tribunal, it appears, was too soft when assessing CT’s appalling criminal record (see §§ 26 to 27) and the Court disagreed with the conclusion that the effect of deportation on the children and CT’s rehabilitation constituted sufficiently exceptional circumstances (§§ 33 to 36).
- MM (Uganda) v SSHD (2016) – where, in my view, the Court incorrectly analysed the approach to section 117C.
It’s mildly re-assuring then to see the summary in MN-T (Columbia) v Secretary of State for the Home Department (2016), a case in which the Secretary of State’s appeal was dismissed (Yes, Dismissed!) by the Court of Appeal. [Note: at this stage, it’s not entirely clear who’s responsible for misspelling Colombia…].
According to the Lawtel summary:
The Upper Tribunal had been entitled to find that there were very compelling circumstances over and above the exceptions described in the Nationality, Immigration and Asylum Act 2002 s.117C(4) outweighing the strong public interest in deportation of a 48-year old Columbian woman who had lived in the UK since the age of nine and had served eight years in prison for a drugs offence. Those circumstances were the strong family ties she had built in the UK, her low risk of reoffending, her rehabilitation and the Secretary of State for the Home Department’s long delay in attempting to effect deportation.
MN-T is of particular interest for a few reasons.
This is one of the factors that is notably absent from the non-exhaustive list of ‘public interest’ factors which Judges are required to consider when assessing whether the case for deportation is outweighed by the person’s personal circumstances. But where the delay is lengthy and unexplained, as here, its effect on the public interest balancing exercise may be very important, a point considered in detail by Lord Bingham in EB (Kosovo) v Secretary of State for the Home Department  3 W.L.R. 178 at paragraphs 14 to 16. Accordingly, the summary reads:
The rationale behind the public interest in deportation was prevention, deterrence, and to express society’s revulsion at the crime. If the secretary of state delayed deportation for many years then that lessened the weight of those considerations.
‘Over and above’
There is a growing list of cases on the meaning of sections 117A to 117D of the 2002 Act. But there hasn’t been a case yet on the rather imprecise phrase “over and above” in section 117C(6). Currently, there is no guidance on how Judges are supposed to weigh one set of relationships or personal ties against another completely different aspect of someone’s personal life and conclude that one ranks “over and above” the other.
At first glance, “over and above” appears to suggest that the circumstances relied on must be even more compelling than the circumstances set out in section 117C (Exception 1). It’s not clear from the summary whether MN-T points in a different direction, but the Court’s reliance on three different aspects of the deportee’s circumstances suggests to me that the phrase should be interpreted flexibly to include other factors, not just factors that are obviously more compelling.
In other words, for “over and above”, read “in addition to”.
I will try to re-post / update this post when the full judgment is MN-T is available.
If you’re a solicitor or NGO caseworker interested in deportation and Article 8, please come along to our event (‘Balancing Act‘) next Thursday evening. Places are limited so please RSVP soon.