C5/2013/1093 
Neutral Citation Number: [2014] EWCA Civ 1304
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL 
(IMMIGRATION AND ASYLUM CHAMBER) 
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Tuesday, 22 July 2014
 
B e f o r e: 

LORD JUSTICE SULLIVAN

LADY JUSTICE BLACK 

LORD JUSTICE RICHARDS 
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Between: 
HA (IRAQ) 
Appellant

v 

SECRETARY OF STATE FOR THE HOME DEPARTMENT 
Respondent 
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DAR Transcript of the Stenograph Notes of  
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Mr D Seddon (instructed by Wilsons Solicitors LLP) appeared on behalf of the Appellant
Mr N Sheldon (instructed by Treasury Solicitors) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE SULLIVAN:  This is an appeal by the Secretary of State against the determination dated 5 February 2013 of the Upper Tribunal (Immigration and Asylum Chamber) allowing HA's appeal against the determination dated 9 February 2011 of the First Tier Tribunal which had dismissed his appeal against the Secretary of State's decision dated 6 October 2010 to make an automatic deportation order against him under section 32(5) of the UK Borders Act 2007.  
2.	The Upper Tribunal allowed HA's appeal on Article 8 grounds only.  It rejected his appeal on asylum and humanitarian protection grounds and there is no challenge by HA to those aspects of the Upper Tribunal's determination.  Before the Upper Tribunal, the Secretary of State had conceded that the First Tier Tribunal had made a material error of law such that its determination had to be set aside and a fresh decision made by the Upper Tribunal.  
Background 
3.	The factual background is set out in some detail in the Upper Tribunal's determination.  In brief, HA, who is an Iraqi national born on 1 July 1976, claimed to have arrived in the United Kingdom some time in 2000.  He made an asylum claim in 2002 which was rejected and the appeal was dismissed.  However, he remained in the United Kingdom without leave and was fined for possessing Class A and C drugs in 2005.  On 4 December 2006, he was convicted on two counts of possessing Class A drugs with intent to supply and sentenced to four years' imprisonment.  His appeal against conviction was dismissed.  
4.	HA's Article 8 appeal was based in large measure on his long standing relationship with his fiancé, CH, who is a British citizen.  She gave evidence before the Upper Tribunal.  The Upper Tribunal concluded that she was "a very impressive witness", that their relationship was a genuine one and that it would not be reasonable to expect her to remove to Iraq:  See paragraphs 88 and 94 of the determination.  The Upper Tribunal said in paragraph 89 that, "This case is really about the operation of Article 8 of the European Convention on Human Rights."
The Upper Tribunal's reasoning 
5.	In paragraph 95 the Upper Tribunal said:
"I have to decide if the inference in the private and family life consequent on removal is proportionate for the proper purpose of deporting foreign criminals for the purposes of the prevention of disorder and crime.  I have to do that knowing that it is unlikely that this Appellant will commit further offences.  The point is the deterrent effect or general expression of society's disapproval of foreign criminals rather than preventing further trouble from this particular man.  That is important in this case."
The Upper Tribunal then said in paragraph 96:
"Clearly there is an interest in his being removed.  Parliament says so in section 32(5) of the UK Borders Act 2007.  I recognise that and, as I must, I respect that."
6.	The Upper Tribunal then considered various matters, including the fact that removing HA would break the relationship between him and CH and that HA had not been in trouble for not far short of seven years.  Then in paragraph 100, the Upper Tribunal said:
"As [counsel then appearing for HA] properly reminds me, amongst the things I have to consider in a case such as this are the Appellant's social, cultural and family ties both with the United Kingdom and the country of destination.  (Maslov v Austria, application number 1638/03).  The Appellant has built up significant ties in the 12 years or so that he has been in the United Kingdom.  He does not have strong links with Iraq.  I accept the evidence he has no family there and he has not lived there very much since he was a boy of 12.  Whilst I am satisfied on the evidence that he is a national of Iraq, he would not be returned to a country where he would seamlessly be reestablished with the help of family or where he has lived as an adult.  This is not determinative, but it is a factor against removal."
7.	In paragraph 101, the Upper Tribunal said that CH was not involved in any way with HA's criminal behaviour.  Their relationship had been established before he got into trouble.  The Upper Tribunal added:
"She has clearly allowed herself to become more committed to a man who has committed very serious criminal offences, but is also a man who has made determined efforts to put aside his criminal offending."
8.	The core of the Upper Tribunal's reasoning on the proportionality issue is contained in paragraph 102 of the determination:
"Whilst I do find the Appellant's length of stay in the United Kingdom and his positive attitude to future behaviour significant factors to weigh in the balance against the imperative of removal, it is the combination of these things with the considerable effect that removal would have on Miss H and indeed the Appellant that I find compelling.  Destroying an important relationship in the light of a reformed criminal who was last in trouble over six years ago is, I find, just too much and I am satisfied that an exception is made out."
Importantly, the Upper Tribunal added this in paragraph 103 of the determination:
"I do not arrive at this conclusion by considering the Rules in their amended form which purports to introduce aspects of Article 8 expressly into the Rules.  They do not assist me with a proper application of the Appellant's human rights.  My decision is in accordance with binding jurisprudence and I allow the appeal on human rights grounds only."
The Secretary of State's grounds of appeal 
9.	On behalf of the Secretary of State, Mr Sheldon appeals against the Upper Tribunal's determination on four grounds.  
10.	They are, in summary; one, the Upper Tribunal expressly failed to have any regard to the new Immigration Rules 398, 399 and 399A which deal with the deportation of foreign criminals and Article 8.  The new Rules reflected the view of Parliament as to the weight to be attached to the public interest in deportation and were at the very least highly material to any Article 8 proportionality assessment.  
11.	Two, the Upper Tribunal failed to recognise the importance of the public interest in deporting foreign criminals and/or failed to give that interest special weight as required in its proportionality assessment.  
12.	Three, the Upper Tribunal had failed properly to apply the criteria set out in Uner v The Netherlands [2007] 45 EHRR 14.  While the Upper Tribunal's reference to Maslov was inapt because HA had not arrived in the United Kingdom until he was an adult, that would not have been a material error if the Tribunal had properly applied the Uner criteria.  In his skeleton argument, Mr Sheldon submits that the Upper Tribunal had erroneously treated the fact that HA was in a long term relationship with CH as a "trump card" which overrode all of the other considerations that are listed in Uner.  
13.	Four, the Upper Tribunal's determination is perverse and no reasonable Upper Tribunal could have concluded that the fact that HA had a long term girlfriend and kept out of trouble since leaving prison amounted to very compelling reasons which outweighed the strong public interest in deporting foreign criminals.  
14.	In support of his submissions, Mr Sheldon referred us to a number of authorities.  At this stage of the judgment, it is helpful to refer to just two of them; MF (Nigeria) v Secretary of State for the Home Department [2013] EWHC Civ 1192 and SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550; [2014] 1 WLR 998.  Both of these authorities postdated the Upper Tribunal's determination in the present case.  
15.	In MF (Nigeria) this court dealt with a number of questions that have been raised as to the proper interpretation of the new Rules.  The Master of the Rolls, giving the judgment of the court, said this in paragraphs 40 to 43:
"40. Does it follow that the new rules have effected no change other than to spell out the circumstances in which a foreign criminal's claim that deportation would breach his article 8 rights will succeed?  At this point, it is necessary to focus on the statement that it will only be "in exceptional circumstances that the public interest in deportation will be outweighed by other factors".  Ms Giovannetti [who appeared for the Secretary of State in that case] submits that the reference to exceptional circumstances serves the purpose of emphasising that, in the balancing exercise, great weight should be given to the public interest in deporting foreign criminals who do not satisfy paras 398 and 399 or 399A.  It is only exceptionally that such foreign criminals will succeed in showing that their rights under article 8(1) trump the public interest in their deportation.
"41. We accept this submission.  In view of the strictures contained at para 20 of Huang, it would have been surprising if the Secretary of State had intended to reintroduce an exceptionality test, thereby flouting the Strasbourg jurisprudence.  At first sight, the choice of the phrase "in exceptional circumstances" might suggest that this is what she purported to do.  But the phrase has been used in a way which was not intended to have this effect in all cases where a state wishes to remove a foreign national who relies on family life which he established at a time when he knew it to be "precarious" (because he had no right to remain in the UK).  The cases were helpfully reviewed by Sales J in R (Nagre) v Secretary of State for the Home Department [2013] EWHC 720 (Admin).  The fact that Nagre was not a case involving deportation of a foreign criminal is immaterial.  The significance of the case law lies in the repeated use by the ECtHR of the phrase "exceptional circumstances".
"42. At para 40, Sales J referred to a statement in the case law that, in "precarious" cases, "it is likely to be only in the most exceptional circumstances that the removal of the non‑national family member will constitute a violation of art 8".  This has been repeated and adopted by the ECtHR in near identical terms in many cases.  At paras 41 and 42, he said that in a "precarious" family life case, it is only in "exceptional" or "the most exceptional circumstances" that removal of the non‑national family member will constitute a violation of article 8.  In our view, that is not to say that a test of exceptionality is being applied.  Rather it is that, in approaching the question of whether removal is a proportionate interference with an individual's article 8 rights, the scales are heavily weighted in favour of deportation and something very compelling (which will be "exceptional") is required to outweigh the public interest in removal.  In our view, it is no coincidence that the phrase "exceptional circumstances" is used in the new rules in the context of weighing the competing factors for and against deportation of foreign criminals.
"43. The word "exceptional" is often used to denote a departure from a general rule.  The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh the public interest in deportation.  These compelling reasons are the "exceptional circumstances"."
16.	This court considered the implications of section 32 of the 2007 Act in SS (Nigeria).  Laws LJ, with whom my Lady Black LJ and Mann J agreed, said this in paragraphs 53 and 54: 
"53.  The importance of the moral and political character of the policy shows that the two drivers of the decision‑maker's margin of discretion ‑‑ the policy's nature and its source ‑‑ operate in tandem.  An Act of Parliament is anyway to be specially respected; but all the more so when it declares policy of this kind.  In this case, the policy is general and overarching.  It is circumscribed only by five carefully drawn exceptions, of which the first is violation of a person's Convention/Refugee Convention rights.  (The others concern minors, EU cases, extradition cases and cases involving persons subject to orders under mental health legislation.)  Clearly, Parliament in the 2007 Act has attached very great weight to the policy as a well justified imperative for the protection of the public and to reflect the public's proper condemnation of serious wrongdoers.  Sedley LJ was with respect right to state that "in the case of a 'foreign criminal' the Act places in the proportionality scales a markedly greater weight than in other cases".  [See paragraph 26 above.]
"54.  I would draw particular attention to the provision contained in s.33(7): "section 32(4) applies despite the application of Exception 1...", that is to say, a foreign criminal's deportation remains conducive to the public good notwithstanding his successful reliance on Article 8.  I said at paragraph 46 that while the authorities demonstrate that there is no rule of exceptionality for Article 8, they also clearly show that the more pressing the public interest in removal or deportation, the stronger must be the claim under Article 8 if it is to prevail.  The pressing nature of the public interest here is vividly informed by the fact that by Parliament's express declaration the public interest is injured if the criminal's deportation is not effected.  Such a result could in my judgment only be justified by a very strong claim indeed." 
17.	In his summary in paragraph 55, Laws LJ referred to "the great weight which the 2007 Act attributes to the deportation of foreign criminals".
HA's case 
18.	On behalf of HA, Mr Seddon has submitted that the Upper Tribunal's failure to have regard to the Rules was an error of form rather than substance.  He reminded us that in MF the Court of Appeal upheld the Upper Tribunal's decision even though it had differed from the Upper Tribunal as to the proper approach to the new Rules.  
19.	In response to ground two of the appeal, Mr Seddon submitted that, properly understood, MF is authority for the proposition that the new Rules merely restated or reflected pre‑existing requirement as expressed in cases as such Uner: to have regard to all of the relevant factors, including the seriousness of the offence.  The weight to be given to any particular factor was for the Upper Tribunal to decide.  It had to do no more than give "sufficient weight" to the public interest in deporting foreign criminals, which it had done in this determination.  
20.	Even if this submission was not accepted, Mr Seddon submitted that the Upper Tribunal had given appropriate weight to the public interest in the deportation of HA.  The Upper Tribunal had recognised that he had been convicted of "very serious offences" (paragraph 101); had recognised that Parliament had said in section 32(5) of the 2007 Act that there was such an interest (paragraph 96); and had considered whether there were "compelling" factors which outweighed that public interest (paragraph 102).  That the factors which weighed against deportation were described by the Upper Tribunal as "compelling" rather than "very compelling" was of no consequence.  
21.	In response to ground three, Mr Seddon took us to the criteria listed in paragraphs 57 and 58 of Uner and submitted that the Upper Tribunal had mentioned each and every one of those factors at some stage in its determination.  Having done so, the Upper Tribunal did not need to repeat all of those matters when it was carrying out the balancing exercise in the paragraphs to which I have referred.  
22.	In response to ground four, Mr Seddon reminded us that each proportionality exercise is fact specific.  The threshold for demonstrating an error of law of rationality grounds is, therefore, a very high one.  He submitted that even if the Upper Tribunal had erred in its approach to the Rules, it could not be said that its decision was perverse.  
23.	In a Respondent's notice, he contended that when HA's asylum claim was being determined, the Secretary of State had a policy of granting Iraqi nationals four years exceptional leave with the expectation of settlement thereafter and that HA had been deprived of the benefit of that policy because the Secretary of State had delayed making a decision as to his nationality.  It should have been, but was not, taken into consideration by the Upper Tribunal in its proportionality assessment.  
24.	Mr Sheldon accepted that for the purposes of his appeal on ground four the court should proceed on the basis that the assertions in the Respondent's notice might be accepted by the Upper Tribunal if the matter was remitted to it, although he made it plain that it was not accepted by the Secretary of State that there had been any improper delay in determining HA's nationality.  
25.	In any event, he submitted that on the facts of this case the Respondent's notice made no difference because the Upper Tribunal had not drawn any distinction between settled lawful migrants and those who were in the host state unlawfully and had merely considered HA's length of stay in the United Kingdom rather than the legal basis for that stay:  See paragraph 103 of the determination.  
Discussion 
26.	Notwithstanding Mr Seddon's valid attempt to save the Upper Tribunal's determination, I have no doubt that it is fatally flawed on a combination of the Secretary of State's grounds one and two.  It is convenient to deal with those two grounds together.
Grounds ones and two 
27.	While I readily accept Mr Seddon's submission that a failure to have regard to the new Immigration Rules is not necessarily a material error of law and that there can be circumstances in which such a failure will amount to an error of form only and not an error of substance (see, for example, MF at paragraph 50) that is not the position in the present case.  I do not accept Mr Seddon's submission that the new Rules do no more than restate or reflect the list of factors that is set out in cases such as Uner.  MF makes it clear that the new Rules go a step further and tell the decision taker what weight they should give to the public interest in deporting foreign criminals.  
28.	In effect, Mr Seddon's submission amounted to a submission that the new Rules had affected no material change, a submission that the Court of Appeal expressly rejected in paragraph 40 of its judgment:  See above.  In the light of the new Rules and the 2007 Act, the Upper Tribunal had to recognise the "weight which the 2007 Act attributes to the deportation of foreign criminals" (see SS (Nigeria)) and that the Rules make it clear that "great weight should be given to that public interest" (see MF (Nigeria)).  
29.	Because of the great weight that must be attributed to this factor in any balancing exercise, the scales are very heavily weighted in favour of a deportation and something very compelling is required to outweigh the public interest in deportation.  Paragraph 96 of the Upper Tribunal's determination which recognised that there was "an interest" in HA being removed and that Parliament had said so in section 32(5) of the 2007 Act, and the combination of factors that the Upper Tribunal found to be "compelling" in paragraph 102, that is to say HA's length of stay in the United Kingdom, his positive attitude to future behaviour and the considerable effect that removal would have on CH and himself, do not reflect either the need to give great weight to the strong public interest in removing foreign criminals such as HA, nor do they engage with the need to identify countervailing factors that are "very compelling" or, as Laws LJ put it in SS (Nigeria), the need to identify a "very strong claim indeed".  If the Upper Tribunal had considered the new Rules, it is most unlikely that it would have made such fundamental errors of approach. 
Ground three 
30.	Since the appeal succeeds on grounds one and two, it is unnecessary to consider ground three.  Mr Sheldon accepts that the Uner criteria were mentioned at various places in the determination so that the Upper Tribunal must have been aware of them to some extent, but he submits that they were not taken into consideration at the critical stage of the determination when the Upper Tribunal was carrying out the proportionality balancing exercise.  For my part, I would prefer to leave open the question whether the earlier references to the criteria in the determination would have been sufficient to save it if grounds one and two had not been made out.  
Ground four 
31.	While I recognise the force of the points made by Mr Sheldon, each of these proportionality cases is fact sensitive and in such a context the perversity threshold is a very high one.  This is not a case where removing or adding one particular factor which has been erroneously excluded or included would inevitably tip the balance one way or the other.  It would be necessary for us to undertake a full proportionality assessment for ourselves, looking at all of the circumstances as they now exist.  It is over a year since the Upper Tribunal's determination.  We would also have to bear in mind the disputed allegations in the Respondent's notice.  
32.	In all the circumstances, Mr Seddon has just persuaded me that the proper course is to remit this matter to a differently constituted Upper Tribunal.  
Conclusion 
33.	For these reasons, I would allow the Secretary of State's appeal.  I would set aside the Upper Tribunal's determination and I would remit HA's appeal for reconsideration to a differently constituted Upper Tribunal.
34.	LADY JUSTICE BLACK:  I agree. 
35.	LORD JUSTICE RICHARDS:  I also agree.