Court of Appeal’s Guidance on the Correct Approach to Revocation of Deportation Orders in Appeal Cases
Court of Appeal’s Guidance on the Correct Approach to Revocation of Deportation Orders in Appeal Cases
Court-of-Appeal Without some cursory regard to the raft of cases emanating from the Court of Appeal in the last few months, the new decision of the Court of Appeal in IT (Jamaica) v The Secretary of State for the Home Department [2016] EWCA Civ 932 would be almost a little too difficult to follow. The larger part of this year has seen the Court of Appeal giving persistent and reiterated guidance on the correct approach to take in deportation appeals( in regards to cases such as, CT (Vietnam), LW (Jamaica, BL (Jamaica), JZ (Zambia), Suckoo). In the last three months, the Court of Appeal turned its focus on considerations regarding the interplay between Sections 117A to 117D of the 2002 Act and paragraphs 399 and 399A of the Immigration Rules( in reference to cases such as Kamara , Rhuppiah, NA (Pakistan), MM (Uganda). We now have the case of IT (Jamaica), seeing the Court of Appeal considering paragraphs 390 to 392 of the Immigration Rules, providing guidance on the approach to take in revocation of deportation order cases, drawing the threads together as regards their earlier judgements and clearly at pains in seeking to remain consistent and faithful to those decisions.
In summary, in the Court of Appeal’s judgment, the undue harshness standard in section 117C of the Nationality, Immigration and Asylum Act 2002 Act means that the deportee must demonstrate that there are very compelling reasons for revoking the deportation order before it has run its course. Section 117C is to be read in the context of the Immigration Rules which make that clear.
What are the relevant statutory provisions and Rules?
Section 5(2) of the Immigration Act 1971 provides that a deportation order against a person may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen.
Section 32(5) of the UK Borders Act 2007 provides that Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33). Section 32(6) states that the Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless—
she thinks that an exception under section 33 applies,
the application for revocation is made while the foreign criminal is outside the United Kingdom, or
section 34(4) applies.
The relevant provisions of the Immigration Rules in relation to revocation of deportation orders are contained in paragraphs 390 to 392.
Paragraph 390A refers to paragraphs 398 to 399A of the Immigration Rules.
Paragraph A398 of the Immigration Rules provides that paragraphs 398 to 399A apply where:
a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention;
a foreign criminal applies for a deportation order made against him to be revoked.
Paragraph 390 applies to all applications to revoke a deportation order, whether made by a foreign criminal or not and whether or not the applicant is in the UK. Its provisions are at a very general level.
Pre-deportation revocation cases fall under paragraph 390A and post-deportation revocation cases fall under paragraph 391 of the Rules.
In relation to paragraph 391A, arguably its effect is to exclude also cases covered by paragraph 390A – so that in practice it means “in cases other than those of foreign criminals”( as per paragraph 26 of Secretary of State for the Home Department v ZP (India) [2015] EWCA Civ 1197).
In relation to paragraph 392, this simply clarifies the effect of the revocation of a deportation order.
The Immigration Rules therefore deal with applications for revocation of a deportation order. In so doing they make provision for the application of Article 8 of ECHR. This will arise if a foreign criminal contends that the maintenance of the deportation order will constitute a disproportionate interference with his right to respect for his family or private life.
The Issue in IT(Jamaica):
IT(Jamaica) raises the question of the weight to be given to the public interest when a deportee applies for revocation of a deportation order made against him. On it depends the further question of what the deportee must show to displace that public interest and in turn what he must demonstrate to a tribunal to succeed on any appeal from the Secretary of State’s refusal to revoke that order.
Heavy reliance placed upon ZP (India):
The Secretary of State argued that the FTT which allowed IT’s appeal should have applied the approach recently identified by the Court of Appeal in ZP (India) v Secretary of State for the Home Department [2016] 4 WLR 35, where the leading judgment given by Underhill LJ. ZP (India) concerned a post-deportation revocation application made before 28 July 2014, when section 117C of the 2002 Act came into force. This appeal was the first time that the Court of Appeal had considered the role of the public interest in appeals from determinations of the tribunals after that date.
The Secretary of State submitted that the weight to be given to the public interest when considering revocation of a deportation order could not in practice (or logically) be any less than when the original deportation order was made as per Underhill LJ in ZP (India ) at paragraph 15 of his judgement: if it has been established when the original order was made that none of the exceptions specified in section 33 applies, and accordingly that the public interest requires the making of a deportation order, that does not cease to be the case the moment the foreign criminal leaves the country: it will, for essentially the same reasons, be contrary to the public interest for them to come back. No doubt it may be right to put a limit on the period for which the public interest requires their continued exclusion, but that is another matter and is addressed in the Immigration Rules.
Underhill LJ further held at paragraph 24 of his judgment that in substance the approach in pre-deportation revocation cases under paragraph 390A and post-deportation revocation cases under paragraph 391 is broadly the same. Decision-takers will have to conduct an assessment of the proportionality of maintaining the order in place for the prescribed period, balancing the public interest in continuing it against the interference with the applicant’s private and family life; but in striking that balance they should take as a starting point the Secretary of State’s assessment of the public interest reflected in the prescribed periods and should only order revocation after a lesser period if there are compelling reasons to do so. Underhill LJ concluded in paragraphs 24 and again at 51 that in post-deportation revocation cases very compelling reasons for revocation were required. It is only where the tribunal is persuaded that, exceptionally, there are very compelling reasons which outweigh the public interest in the order continuing for the full prescribed term that such revocation may be allowed.
It was also submitted on behalf of the Secretary of State in IT(Jamaica) that while circumstances satisfying Exceptions 1 and 2 in section 117C of the Nationality, Immigration and Asylum Act 2002 can constitute very compelling circumstances those circumstances must meet the high threshold in paragraph 51 of the judgment of Underhill LJ in ZP (India).
On behalf of IT, it was submitted, inter alia, that there is no need in the case of revocation of a deportation order to show that there were very compelling reasons for it to be revoked: the concept of very compelling reasons is derived from the decision of the court in MF Nigeria, and not section 117C(5), which lays down a different test that the continuation of the deportation order is “unduly harsh”. It was therefore sought to distinguish ZP (India).
Conclusions of the Court in IT(Jamaica):
The Court of Appeal in IT(Jamaica) considered and concluded as follows:
The relevant question is whether the continuation of the deportation order is unduly harsh, and whether very compelling reasons have to be shown to establish undue harshness.
The Court in IT(Jamaica) reached the same conclusion as Underhill LJ( ZP (India) did in relation to the provisions under which he considered that very compelling reasons have to be shown.
As held in MM (Uganda), to answer that question, the public interest must be brought into account. Therefore, the court must know what that public interest is in any particular circumstance in order to give appropriate weight to it.
The function of section 117C is to set out the weight to be given to the public interest to be taken into account in the proportionality exercise to be carried out under Article 8 of the Convention in the case of a foreign criminal. Section 117C(1) states that the deportation of foreign criminals is in the public interest. In this context, the word “deportation” is being used to convey not just the act of removing someone from the jurisdiction but also the maintaining of the banishment for a given period of time: if this were not so, section 117C(1) would achieve little.
To understand the length of the deportation in any particular case, the tribunal hearing the case has to examine the Immigration Rules. From that the tribunal is bound to observe that those Rules proceed on the basis that, in the absence of undue harshness, the appropriate period of absence from this jurisdiction in a case such as IT is ten years (paragraph 391 of the Immigration Rules).
It is clear from section 117C (2) that the nature of the offending is also to be taken into account. The tribunal will have access to the circumstances of the offence and to the length of the sentence.
Subsection (1) and (2) of section 117C together make manifest the strength of the public interest. In order to displace that public interest, the harshness brought about by the continuation of the deportation order must be undue, i.e. it must be sufficient to outweigh that strong public interest. Inevitably, therefore, there will have to be very compelling reasons. That conclusion is consistent with the MF(Nigeria) and ZP(India) even though those authorities are based on different Immigration Rules and statutory provisions.
The undue harshness test in section 117C(5) has been inserted by primary legislation and it was not in force at the time of the Immigration Rules considered in ZP( India). Underhill LJ there held that paragraphs 398 and 399 of the Rules applying before the commencement date of section 117C meant that in a post-deportation revocation application compelling reasons had to be shown. The Court in IT(Jamaica) reached the same conclusion in relation to a post-deportation revocation application after the commencement of section 117C to D. The same conclusion as Underhill LJ reached in relation to a post-deportation revocation application made before the date on which section 117C(5) came into force must similarly apply in relation to the same application made after that date, namely that very compelling reasons must be shown to displace the public interest in deportation.
The commencement of section 117A to D of the 2002 Act does not mean that a different and lower weight is to be given to the public interest in applications to revoke a deportation order following deportation than in other deportation situations. The result is that the same standard must apply in this case as in a pre-section 117A to D case like ZP (India). MM (Uganda) does not mandate a different conclusion.
As Underhill LJ held in ZP (India), the starting point must be that the assessment of what was in the public interest at the date on which the deportation order was made cannot be of any less weight at the later stage when revocation is sought. This means that objections to the making of a deportation order which were unsuccessful at the time it was made are unlikely to be successful grounds for obtaining the revocation of a deportation order after removal from the jurisdiction.
Conclusion:
So, there is to be no different and lower weight to be given to the public interest in applications to revoke a deportation order. The new judgement certainly does not seem to make it any easier for deportees.
Hopefully, with all this new guidance coming from the Court of Appeal as regards deportation appeal cases, FTT Judges will remain on top of the relevant applicable caselaw, but then as observed in Koori & Ors v The Secretary of State for the Home Department [2016] EWCA Civ 552, “tribunals are entitled to expect to be referred at the hearing to the relevant law and to hear submissions on it”.
Latest immigration rule changes – APRIL 2017
The Home office is becoming increasingly active with regular changes of the Immigration Rules and practice.
Unfortunately, many of these changes are not in favour of immigrants in the Uk., but rather are more restrictions on their rights in the UK. And even more, we can expect th real drastic changes in the period that is coming soon.
On 16 March 2017 the Home Office published its Statement of Changes to the Immigration Rules. The implications for Tier 4 sponsors are again not particularly far-reaching and it is anticipated that the Government will publish a consultation later this year prior to making any further changes which affect the sector.
1. Working week defined
Tier 4 students, who are allowed to work, are limited to the number of hours that they can work each week. The UKVI has now defined that a “week” is to run from Monday to Sunday. Therefore, students, employers and sponsors need to make sure that they adhere to this definition to remain compliant with the Immigration Rules. This change brings clarity to both students and employers, who have in the past grappled with the definition of the working week with some applying a “rolling week” definition.
2. Genuineness test extended
In a change that will impact independent schools, the genuineness test will now also apply to 16 and 17 year olds sponsored under Tier 4 (Child). Until now, only 16 and 17 year olds sponsored under Tier 4 (General) had to meet this requirement.
One of the main reasons for refusals of student applications under Tier 4 (General) is credibility. We therefore expect to see an increase in refusals of Tier 4 (Child) students. This in turn may impact the independent schools’ Basic Compliance Assessment (BCA) refusal rate which we understand currently sits on average at just over 5%. We therefore recommend that independent schools tighten up their recruitment processes, as discretion in assessing their BCA application is applied on a case by case basis.
3. Additional requirements for children
Tier 4 students under 18 years of age are already required to provide confirmation from their parents or legal guardian (or just one parent if that parent has sole legal responsibility for the child) that they consent to the child’s travel, reception and care in the UK. From 6 April, an original or notarised copy of one of the following documenets can be used to evidence the relationship:
(i) a birth certificate showing the names of the applicant’s parent(s),
(ii) a certificate of adoption showing the names of the applicant’s parent(s) or legal guardian, or
(iii) a court document naming the applicant’s legal guardian.
Sponsors should be aware that the requirement to obtain consent from both parents (where applicable) has always been in place. We have noted during compliance audits that the terms and conditions and consent letters relied on by some sponsors only request a signature from one parent. They should therefore review their processes. While there is no current requirement on sponsors to obtain evidence of the relationship, it is recommended that they do this.
4. Rules relaxed for probationary sponsors
The restriction on the level of course that can be offered by sponsors with probationary status to Tier 4 students has been lifted. From 6 April probationary sponsors will be able to sponsor Tier 4 students, under 18 years of age, on courses at Level 3 on the Regulated Qualification Framework (RQF)/ Level 6 in the Scottish Credit and Qualification Framework (SCQF).
5. Welcome news for some Government/international scholarship students
Only Tier 4 students who have received financial sponsorship from a Government or international sponsorship agency, which covers both fees and maintenance, will now be required to obtain unconditional written consent from their sponsor prior to switching to an economic route, eg Tier 2. The rules previously required all those in receipt of financial sponsorship from a Government or international sponsorship agency to provide such consent.
6. New time limit exemption – Maritime and Coastguard Agency
Tier 4 (General) students, aged 18 or above, are normally only allowed to study courses below degree level for two years. From 6 April this time limit is being extended to three years where the below degree level course is subject to a regulatory requirement by the Maritime and Coastguard Agency to spend at least 12 months at sea.
7. New exemption from academic progression
Students applying for certain intercalated courses, or applying to complete their main course after a period of intercalation, will be exempt from the academic progression requirement. This applies to bachelor, masters and PhD courses in medicine, veterinary medicine and science, or dentistry.
8. Loans and siblings – maintenance changes
An amendment has been made to the rules on maintenance to allow loan funds to be paid directly to the educational institution in the UK. The living costs portion of the loan can then be released to the applicant before or on arrival in the UK.
In addition, Tier 4 (Child) applicants, with a younger sibling (under 12) who is also coming to the UK under Tier 4 (Child) and is accompanied by their parent on the ‘Parent of a Tier 4 (Child)’ route, can now demonstrate maintenance on the basis that they will reside with their parent(s).
9. Overstayers and re-entry ban
Unless an exception applies, the period of overstay which will not result in an automatic re-entry ban being imposed has been reduced from 90 to 30 days. Educational institutions assigning CASs to students need to make sure that they are alert to this new limit as it may impact their refusal rate.
In addition, the UKVI has clarified that CASs assigned to Tier 4 students must confirm that the course starts within 28 days of an applicant’s leave ending or the start of the period of overstay.
As a reminder, the 28 day grace period to overstayers was reduced to 14 days from 24 November 2016. For further information on this, please read our previous article entitled ‘Changes impacting all applications’ here.
Residence documents: To apply or not to apply
The right of permanent residence given by Article 16 of Directive 2004/38 to EEA migrants and their family members who have ‘legally resided’ in another member state for five years is arguably the most striking feature of the way in which the Directive, in force since 30 April 2006, has strengthened European Union (EU) residence law.
However, since Brexit effects have started to worry EU nationals in the UK, we are currently receiving lots of queries from EEA nationals asking about the need to apply for residence documents, and in particular documents certifying permanent residence.
Permanent residence is an automatic right, but it does not automatically provide the EEA national with a physical document. For this document, you need to apply to the Home Office for:
Registration card or certificate – if you have lived in the UK for less than five years
Permanent residence document – if you have lived in the UK for five years or more
Yes, the application is 85 pages long, but in reality only a few sections are applicable to each applicant.
Do I need to apply?
It is the fact that most of EU national sin the Uk have never applied for any documents certifying their status in the UK. Simple, as that was not compulsory. It is not mandatory for an EEA national to hold documentation certifying residence or permanent residence in the UK, but we think that anyone who is planning to remain in the UK should apply.
It makes sense to obtain a document which confirms your residence or settled status. Holders of these documents will avoid questioning by immigration control upon returning to the UK after travelling, and avoid delays when seeking employment. And if this doesn’t convince you, the fact that the application fee is still only £65 might.
One of the most important reasons to apply for this document is the potential end of free movement rights and likelihood that the Home Office will introduce a policy under which EEA nationals will be required to apply for identification documenting their right to remain in the UK.
It is expected that once the UK replaces the European Regulations (which currently govern applications for EEA registration certificates and cards), the Home Office will impose higher application fees. And, at the moment, one of the cheapest applications for leave to remain under the Immigration Rules (rather than EEA Regulations) is £811.
Online applications
Applications, either as a qualified person or for settlement, can now be submitted online. The online applications seem to be less complicated as these tend to ask the questions that are relevant to the applicant.
Perhaps the best feature of the online application is that it does not require a list of all of the applicant’s absences from the UK in the past five years. It is important to know whether you are eligible to apply online as there are some exceptions to eligibility.
European passport return service
Understandably, there are severe delays in processing EEA applications and applications can remain pending with the Home Office for several months. Some applicants have the option to submit their passport or national identity card.
But for those who only have their passport or whose country does not issue national identity cards, submitting your application would mean staying in the UK without the ability to travel abroad. For these applicants, there is now an option to submit an application online (subject to eligibility criteria) and use the European passport return service. As part of this service, a participating local authority can check the applicant’s passport and hand it straight back which means that you can keep your passport and travel abroad whilst the Home Office decides the application.
Comprehensive Sickness Insurance
This is one of the hottest topics amongst applicants. Some EEA nationals have delayed their application because they have never held Comprehensive Sickness Insurance (CSI).
Only applicants relying on a period of study or self-sufficiency in the UK as part of their five year qualifying period must have held CSI during the claimed period. CSI is a requirement in these two categories and proof must be submitted with the application.
Lack of evidence or not having held CSI does not mean that an EEA national has to leave the UK, but it might mean that your application for a permanent residence document will not get approved. If you are still a student or self-sufficient but don’t have CSI when you apply, you are advised to obtain one and apply for a registration card or certificate instead.
United Kingdom April 7 2017
