OO (Nigeria), R (on the application of) v Secretary of State for the Home Department, Court of Appeal - Civil Division, May 10, 2017, [2017] EWCA Civ 338

Issuing Organization:Civil Division
Actores:OO (Nigeria), R (on the application of) v Secretary of State for the Home Department
Resolution Date:May 10, 2017
 
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Case No: C2/2015/2086

Neutral Citation Number: [2017] EWCA Civ 338

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE KEBEDE

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 10 May 2017

Before:

LORD JUSTICE JACKSON

LADY JUSTICE KING

and

SIR TIMOTHY LLOYD

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Between:

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Sonali Naik and Bijan Hoshi (instructed by Kesar & Co) for the Appellant

Shu Shin Luh (instructed by Kesar & Co) for VO (a minor)

(applying to be joined as an Interested Party

Lisa Busch Q.C. (instructed by the Government Legal Department) for the Respondent

Hearing date: 9 March 2017

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JudgmentSir Timothy Lloyd:

Introduction

  1. This is an appeal by the appellant OO against the order of Upper Tribunal Judge Kebede, made on 17 June 2015, refusing permission to seek judicial review of decisions made by the respondent, the Secretary of State for the Home Department, to remove OO from the United Kingdom and that if he wishes to appeal against a deportation order made on 4 December 2014, he must do so from outside the United Kingdom. The decision to remove him was made, first, on 8 December 2014, and then renewed on 6 January 2015. A further decision on 23 February 2015 is not now relevant. The decisions took the form of certification under section 94B of the Nationality Immigration and Asylum Act 2002 (the 2002 Act). A further decision to the same effect was made recently, on 30 January 2017, taking into account new material put forward on behalf of OO.

  2. The deportation order was made on the basis of OO's conviction on 23 September 2013 of an offence of acquiring criminal property, for which he was sentenced to imprisonment for two years and six months. He claims that his deportation would be in breach of the United Kingdom's obligations under the European Convention on Human Rights, in particular as regards his rights, and those of his wife and their son, to respect for their family life under article 8 of the Convention.

  3. The appeal concerns the application of section 94B to facts which in some material respects are significantly different from those of this court's decision in Kiarie v SSHD, R (Byndloss) v SSHD [2015] EWCA Civ 1020, [2016] 1 WLR 1961 (Kiarie and Byndloss). That decision has been appealed to the Supreme Court of the United Kingdom, where argument has been heard and judgment is awaited.

  4. The appellant, OO, was represented on the appeal by Ms Naik and Mr Hoshi, and the respondent Secretary of State by Ms Busch Q.C. I am grateful to Counsel for their clear and helpful submissions.

  5. For reasons set out below, I have come to the conclusion that, on the particular facts of this case, it would be disproportionate to remove OO from the United Kingdom pending his appeal against the deportation order, having regard to the best interests of his son and to the Convention right under article 8 to respect for family life. I would therefore allow the appeal and quash the successive certificates under section 94B.

    The facts in outline

  6. OO was born in Nigeria in April 1975. In 1992 he left Nigeria for Spain. In 2000 he met in Spain a woman who was a British national. They were married in 2001. OO was then granted 12 months' leave to enter the United Kingdom as the spouse of a British national. The marriage broke down, and OO suffered domestic violence from his wife. OO applied in 2002 for indefinite leave to remain under the Secretary of State's domestic violence policy; this was granted in 2004. In the meantime OO met a Nigerian woman, PO, who had entered the United Kingdom unlawfully. They commenced a relationship and they have a son, VO, who was born in 2006.

  7. In 2010 PO was granted discretionary leave to remain for three years; in June 2012 she and OO married. In 2009 and again in 2013 OO was convicted of road traffic offences (failure to provide a specimen). Later in 2013 he was convicted of the offence of acquiring criminal property which I have already mentioned, and sentenced to prison. He has served such part of the sentence as he was required to by law. In December 2013 he was served with notice of liability to deportation, to which he made representations that this would breach his human rights, under articles 3 and 8. Despite this, the deportation order was made on 4 December 2014.

  8. On 8 December 2014 the Secretary of State made the first of her decisions to certify under section 94B. She did not then deal with the article 3 claim, but nothing now turns on that.

  9. OO was released from prison on licence in January 2015 but detained under immigration powers. From time to time since then he has been detained under such powers but for the most part he has been on immigration bail, living at home with PO and VO, as he did before he was sent to prison.

  10. In February 2015 OO applied to the Upper Tribunal (Immigration and Asylum Chamber) for judicial review of the section 94B certificate. Permission to apply was refused on the papers and then, after a hearing, by Upper Tribunal Judge Kebede on 17 June 2015, who also refused permission to appeal. At that time the appeals to the Court of Appeal in Kiarie and Byndloss awaited hearing and OO's proceedings were stayed pending those appeals. Judgment was given in those appeals in October 2015. This appeal then proceeded, Underhill LJ giving permission to appeal on almost all grounds relied on by OO in May 2016.

  11. In March 2016 OO's solicitors sent to the Secretary of State further evidential material sought to be relied on in support of his opposition to the section 94B certificate. On 30 January 2017 Secretary of State issued a further certification decision under section 94B, in fuller terms and to the same effect. OO then applied to the court to amend his grounds of appeal so as to apply for judicial review of that latest certificate, and to admit further evidence. In addition to that, solicitors on behalf of VO applied at a late stage for VO to be added formally as an Interested Party and to be entitled to make representations to the court on the appeal, even if only in writing.

  12. At the outset of the hearing of the appeal on 9 March 2017, we heard the application to amend the grounds so as to challenge the latest certificate, and granted that application. We also heard the application in respect of VO but dismissed that application, for reasons given by Jackson LJ at the time, of which the most important was that it would have required time to be allowed to the Secretary of State after the hearing to respond to the written submissions, and would therefore have delayed and complicated the conduct and progression of the appeal.

  13. Accordingly, we have to consider the Secretary of State's decisions to certify as at December 2014, January 2015 and as at January 2017. The last was made with the benefit both of this court's decision and reasoning in Kiarie and Byndloss, and of the additional evidence put forward on behalf of OO in the meantime.

    The legislation

  14. By virtue of his conviction and sentence, OO is a foreign criminal in the terms of section 32 of the UK Borders Act 2007. Section 32(4) provides that his deportation is conducive to the public good, for the purposes of the Immigration Act 1971, section 3(5)(a), and section 32(5) obliges the Secretary of State to make a deportation order in respect of him (under Immigration Act 1971 section 5), subject to section 33. Relevantly, section 33 provides that section 32(4) and (5) do not apply if his removal would breach rights under the ECHR.

  15. Under section 82 of the 2002 Act, OO has a right of appeal against the deportation order. Apart from the effect of section 94B, OO would be entitled to bring such an appeal while he is within the United Kingdom on the grounds that to remove him would be in breach of his Convention rights, and to remain in the United Kingdom while he pursues such an appeal, unless, under section 94, the Secretary of State certifies the human rights claim as clearly unfounded. Section 94B, introduced by amendment in 2014, changes that position in cases to which it applies. Until December 2016 it was in the terms set out below, so far as relevant. It was further amended in December 2016, but not so as to affect substantively the basis for the further decision made in January 2017.

    ``94B. Appeal from within the United Kingdom: certification of human rights claims made by persons liable to deportation

    (1) This section applies where a human rights claim has been made by a person (`P') who is liable to deportation under -

    (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good) ...

    ...

    (2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to P's claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).

    (3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed.''

  16. Thus the issue which the Secretary of State has to address before certifying under the section is whether the removal pending the outcome of an appeal would or would not be unlawful under the Human Rights Act 1998, i.e. whether such removal would itself breach Convention rights. Necessarily, this arises in a context in which the human rights claim which would be the basis of the appeal against the deportation order is not regarded as clearly unfounded, since...

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