SC (Zimbabwe) v Secretary of State for the Home Department, Court of Appeal - Civil Division, April 26, 2018, [2018] EWCA Civ 929

Resolution Date:April 26, 2018
Issuing Organization:Civil Division
Actores:SC (Zimbabwe) v Secretary of State for the Home Department
 
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Neutral Citation Number: [2018] EWCA Civ 929

Case No: C5/2016/0086

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL,

(IMMIGRATION AND ASYLUM CHAMBER)

Upper Tribunal Judge Canavan

DA014812014

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 26/04/2018

Before:

LORD JUSTICE McCOMBE

LORD JUSTICE LINDBLOM

and

LORD JUSTICE LEGGATT

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Between:

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John Walsh (instructed by Universe Solicitors) for the Appellant

Marcus Pilgerstorfer (instructed by Government Legal Department) for the Respondent

Hearing date: 22 March 2018

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Lord Justice McCombe:

1. This is an appeal from the order of the Upper Tribunal (Immigration and Asylum Chamber) (``UT'') (Upper Tribunal Judge Canavan) promulgated on 21 October 2015 whereby the UT dismissed an appeal by the appellant from the order of 24 April 2015 of the First-Tier Tribunal (Immigration and Asylum Chamber) (``FTT'') (Tribunal Judge I. Ross). The FTT, for its part, had dismissed an appeal by the appellant from a decision of the respondent of 16 July 2014 to deport the appellant to Zimbabwe. Permission to appeal to this court, which had been refused by the UT, was granted to the appellant by Laws LJ by an order of 30 June 2016.

2. The appellant is a national of Zimbabwe who first entered the United Kingdom on 8 December 2001 and claimed asylum. The asylum claim was refused on 17 December 2001 and an appeal against that refusal was dismissed on 22 February 2002. All rights of appeal were exhausted by 12 March 2002. Temporary admission had been granted on 19 December 2001. This was renewed on 4 March 2003. The appellant was granted indefinite leave to remain in the UK on 27 May 2010. On 12 June 2013 the appellant was arrested on suspicion of fraud, involving obtaining an NHS bursary, employment with an NHS Trust and having claimed various benefits while working. She was subsequently convicted (on her pleas of guilty) of four offences of using a copy of a false instrument and three offences of making false representations to make a gain. The offences were committed in the period between 2007 and 2013. She was sentenced in the Crown Court at Snaresbrook on 21 August 2013 to three sentences of 7 months' imprisonment which were ordered to be served consecutively to each other, resulting in a total sentence of 21 months' imprisonment.

3. On 8 October 2013 the appellant was served with a notice of liability to deportation and on 4 April 2014 a decision was made to make a deportation order. This first decision was withdrawn on account of the appellant's illness. However, a new decision was made on 16 July 2014 to the same effect. It was against this decision that the appellant appealed to the FTT and the UT and now appeals to this court.

4. While neither of the decision letters is particularly clearly expressed, the appellant accepts that ``as the case developed'' it ``emerged'' that, in making the decision in issue, the respondent had concluded that the appellant was a ``persistent offender who shows a particular disregard for the law'' within the meaning of paragraph 398 (c) of the Immigration Rules. It was/is also contended by the respondent that the appellant was/is a ``foreign criminal'' and a ``persistent offender'' within the meaning of s.117D(2)(c)(iii) of the Nationality, Immigration and Asylum Act 2002 (``the 2002'') (as amended by the Immigration Act 2014 as from 28 July 2014).

5. The appellant does not fall within the provisions for automatic deportation applicable in respect of offenders sentenced to at least 12 months imprisonment, enacted in s.32 of the UK Borders Act 2007, because, while she was sentenced to a total term of imprisonment of 21 months, that was made up of individual sentences of 7 months ordered to be served consecutively. By s.38(1) of the 2007 Act reference to a person sentenced to a period of imprisonment of at least 12 months,

``...does not include a reference to a person who is sentenced to a period of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months''.

However, a person who is not a British citizen remains liable to deportation, if ``...the Secretary of State deems his deportation to be conducive to the public good'' (s.3(5) of the Immigration Act 1971) and by s.5 of the 1971 Act, if a person is liable to deportation, a deportation order may be made against him/her.

6. Under the Immigration Rules (para. 396) there is a presumption that it is in the public interest that a person liable to deportation should be deported. Where, as here, the person concerned contends that removal would infringe his/her rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms (``ECHR''), the Rules make further provision in paragraph 398 as follows:

``398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good and in the public interest because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above...

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