Case No: C5/2013/1668
Neutral Citation Number: [2015] EWCA Civ 1288
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER
IA/36294/2011

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/12/2015
Before :

LORD JUSTICE JACKSON
LADY JUSTICE KING
and
MS JUSTICE RUSSELL
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Between :

	DM (ZIMBABWE)	Appellant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

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Ms Shivani Jegarajah (instructed by Duncan Lewis Solicitors) for the Appellant
Mr Rory Dunlop (instructed by The Government Legal Department) for the Respondent

Hearing date: 1st December 2015
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Judgment
Lord Justice Jackson: 
1.	This judgment is in five parts, namely:
Part 1. Introduction	Paragraphs 2 to 6 	
Part 2. The facts	Paragraphs 7 to 13 	
Part 3. The appeal to the Court of Appeal 	Paragraphs 14 to 19	
Part 4. The Law	Paragraphs 20 to 36	
Part 5. Decision	Paragraphs 37 to 42	
Part 1. Introduction
2.	This is an appeal by a foreign criminal against a deportation decision.  The main issue in this appeal is whether certain statements of principle by the European Court of Human Rights in Maslov v Austria (Application no. 1638/03, 23rd June 2008) are applicable to foreign criminals who are unlawfully present in the host country.
3.	The provisions of the UK Borders Act 2007, which was the governing statute at the relevant time, are well known and do not need to be set out.
4.	The provisions of the Immigration Rules are less well known, because they are constantly changing.  At the time of the Secretary of State’s deportation decision paragraph 364 of the Immigration Rules provided as follows:
“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.”

5.	I shall refer to the European Convention on Human Rights as “ECHR”.  Article 8 of the ECHR provides:
“Article 8 – Right to respect for private and family life 
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

6.	After these introductory remarks, I must now turn to the facts.
Part 2.  The facts
7.	The appellant is a national of Zimbabwe born on 14th September 1990.  He came to the United Kingdom with his sister on 12th April 2000.  He was then aged 9 years and 7 months.  The Secretary of State granted him leave to enter as a visitor for 6 months.  He was subsequently granted leave to remain as a student until 30th April 2002.  The appellant did not return to Zimbabwe by that date, but remained living in the UK with his parents and sister.
8.	In August 2002 the appellant’s father made a claim for asylum, naming the appellant as one of his dependants.  The Secretary of State rejected that claim.  The father unsuccessfully appealed against the refusal of his claim.  The appellant subsequently made an asylum and human rights claim in his own right in 2008, in response to a liability to removal notice from the Secretary of State. The Secretary of State rejected that claim. The appellant’s appeal to the First-tier Tribunal against that decision failed on 24 May 2011.
9.	While the appellant and his sister were living in this country, they enjoyed the benefits of a UK education up to the age of 18.  The sister put that education to good use.  She completed an IT apprenticeship and embarked upon paid employment.  The appellant followed a different path.  He embarked upon a career of crime.  
10.	Between 2007 and 2011 the appellant committed numerous criminal offences.  These included attempted robbery, robbery, possessing an intimation firearm, theft, possession of Class B and Class C drugs, breaches of anti-social behaviour order, threatening behaviour with intent to cause fear of violence, possessing articles for use in fraud, breach of bail and many similar offences.  The appellant received a variety of custodial and non-custodial sentences.  The custodial sentences ranged between three months and eight months in length.  Shortly stated, the appellant was a menace to the community.  He caused distress to a large number of victims.  He put others to considerable expense and made repeated demands upon the criminal justice system.
11.	Unsurprisingly the Secretary of State concluded that the deportation of the appellant to Zimbabwe would be conducive to the public good.  On 10th November 2011 she served a deportation notice on the appellant.  
12.	The appellant appealed to the First-tier Tribunal against the Secretary of State’s decision to make a deportation order on the grounds that deportation would be a breach of his rights under ECHR article 8.  The First-tier Tribunal dismissed the appellant’s appeal.  The appellant appealed from there to the Upper Tribunal on essentially the same grounds.  By a determination promulgated on the 29th April 2013 the Upper Tribunal dismissed the appellant’s further appeal.
13.	The appellant was aggrieved by the Upper Tribunal’s decision.  Accordingly he appealed to the Court of Appeal.
Part 3.  The appeal to the Court of Appeal
14.	By a notice of appeal filed on 19th June 2013 the appellant applied for permission to appeal on the ground that the deportation decision was in breach of his rights under ECHR article 8.  Laws LJ refused permission on the papers, stating:
“On the merits, this applicant has been unlawfully here at least since 28th February 2003. He is a persistent and prolific criminal. His record includes violence and dishonesty. His deportation is manifestly in the public interest and the argument that his length of stay in the UK since the age of 9 might justify his being allowed to remain is fanciful.”

15.	The appellant orally renewed his application for permission to appeal.  The hearing of that application was deferred pending the Court of Appeal’s decision in Akpinar v Upper Tribunal (Immigration and Asylum Chamber) [2014] EWCA Civ 937.  The court handed down that decision on 8th July 2014.
16.	At an oral hearing on 16th July 2014 Maurice Kay LJ granted permission to appeal with some reluctance.  At paragraphs 11-13 he said:
“11. As I say, I have come very close to concluding that ultimately his case would be bound to fail and that he ought not be granted permission.
12. However, the fact is that he was a juvenile when this offending began, he was 20 when it came to an end, and has been in this country since he was aged nine or thereabouts.
13. In these circumstances, I think it can just about be said that he should be granted permission to appeal so that it can be considered whether his case, notwithstanding its unattractive features, should ultimately be reconsidered by the Upper Tribunal, having regard to the Maslov criteria or their equivalent in relation to a person whose presence is unlawful.”

17.	In these somewhat inauspicious circumstances the appeal came on for hearing before us on 1st December 2014.  Although the grounds of appeal and supporting skeleton argument are wide ranging, Ms Jegarajah for the appellant has helpfully focused her oral submissions on the real issues in this appeal.
18.	Ms Jegarajah advances two arguments.  First, she says that the tribunals did not correctly apply the legal principles established by the Strasbourg Court in Üner v The Netherlands (Application 46410/99, 18th October 2006) and Maslov v Austria (Application 1638/03, 23rd June 2008).  Secondly, Ms Jegarajah submits that the proper remedy is remittal to the Upper Tribunal.  If the case is remitted, there is a good prospect that the Upper Tribunal will allow the appellant’s appeal.
19.	Before addressing these arguments. I must first review the law.
Part 4.  The Law
20.	Despite the strong pointers towards deportation in paragraph 364 of the Immigration Rules, the fact remains that the Secretary of State cannot make a deportation order against a foreign criminal if that would breach his rights under ECHR article 8.  It is therefore necessary to consider both the Strasbourg decisions and the English authorities on the operation of article 8 in the context of deportation.  
21.	In Üner v The Netherlands (Application 46410/99, 18th October 2006) U, a Turkish national, went with his mother and brothers to live in The Netherlands when he was aged 12.  He obtained a residence permit.  He committed offences of violence.  When he was aged 29 the Dutch authorities deported him to Turkey.  The Grand Chamber of the European Court of Human Rights held that this was a breach of U’s rights under article 8 of ECHR.
22.	In paragraph 57 of its judgment the Grand Chamber listed the factors which required consideration in an assessment under ECHR article 8.  These included the following:
“• the nature and seriousness of the offence committed by the applicant;
• the length of the applicant’s stay in the country from which he or she is to be expelled;
• the time elapsed since the offence was committed and the applicant’s conduct during that period;
• the nationalities of the various persons concerned;
• the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;”

23.	In Maslov v Austria (Application 1638/03, 23rd June 2008) M, a Bulgarian national, went to live in Austria with his parents and siblings when he was aged 6.  He obtained an unlimited settlement permit.  During his teens M committed a series of criminal offences.  The Austrian authorities deported M to Bulgaria when he was aged 19.  The Grand Chamber of the European Court of Human Rights held that this was a breach of M’s rights under ECHR article 8. 
24.	The Grand Chamber stated the following general principles at paragraphs 71 to 75 of its judgment:
“71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are: 
•  the nature and seriousness of the offence committed by the applicant;
•  the length of the applicant's stay in the country from which he or she is to be expelled;
•  the time elapsed since the offence was committed and the applicant's conduct during that period;
•  the solidity of social, cultural and family ties with the host country and with the country of destination.
72. The Court would also clarify that the age of the person concerned can play a role when applying some of the above criteria. For instance, when assessing the nature and seriousness of the offences committed by an applicant, it has to be taken into account whether he or she committed them as a juvenile or as an adult (see, for instance, Moustaquim v. Belgium, judgment of 18 February 1991, Series A no. 193, p. 19, § 44, and Radovanovic v. Austria, no. 42703/98, § 35, 22 April 2004). 
73.  In turn, when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above). 
74.  Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine). 
75.  In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile.”

25.	A significant feature of both Üner and Maslov was that the applicant was a settled migrant, who had acquired a permanent right of residence in the host country.  The Strasbourg Court adopts a different approach in cases where the applicant has not acquired lawful rights of residence in the host country.  See El-Habach v Germany (Application no. 66837/11, 22nd January 2013) and Jeunesse v The Netherlands (Application no. 12738/10, 3rd October 2014).
26.	In El-Habach E, a Lebanese national, at the age of 5 went to live in Germany with his parents and brothers.  He lived there for 26 years, but did not acquire a right of permanent residence.  He committed numerous crimes.  The German authorities proposed to deport him to Lebanon.  The Strasbourg Court rejected E’s claim for breach of ECHR article 8.  At paragraph 31 the court stated:
“As regards the length of the applicant’s stay in Germany, the Court notes that the applicant entered Germany at the age of five and resided there for twenty-six years prior to his deportation. The Court observes in this context that the application, in spite of his long residence in Germany, never acquired an unlimited residence permit.  The applicant thus did not have any legitimate reason to expect not to be the object of an expulsion order.”

27.	Jeunesse was a case concerning family life and administrative removal.  J did not acquire any permanent right of residence in the host country.  At paragraphs 104 to 105 the court stated:
“104. The instant case may be distinguished from cases concerning “settled migrants” as this notion has been used in the Court’s case-law, namely, persons who have already been granted formally a right of residence in a host country. A subsequent withdrawal of that right, for instance because the person concerned has been convicted of a criminal offence, will constitute an interference with his or her right to respect for private and/or family life within the meaning of Article 8. In such cases, the Court will examine whether the interference is justified under the second paragraph of Article 8. In this connection, it will have regard to the various criteria which it has identified in its case-law in order to determine whether a fair balance has been struck between the grounds underlying the authorities’ decision to withdraw the right of residence and the Article 8 rights of the individual concerned (see, for instance, Boultif v. Switzerland, no. 54273/00, ECHR 2001-IX; Üner v. the Netherlands [GC], no. 46410/99, ECHR 2006-XII; Maslov v. Austria [GC], no. 1638/03, ECHR 2008; Savasci v. Germany (dec.), no. 45971/08, 19 March 2013; and Udeh v. Switzerland, no. 12020/09, 16 April 2013).
105. As the factual and legal situation of a settled migrant and that of an alien seeking admission to a host country – albeit in the applicant’s case after numerous applications for a residence permit and many years of actual residence – are not the same, the criteria developed in the Court’s case-law for assessing whether a withdrawal of a residence permit of a settled migrant is compatible with Article 8 cannot be transposed automatically to the situation of the applicant.”

28.	I now turn from the Strasbourg cases to our own domestic law.  There is an abundance of authorities in which the courts have applied the principles stated in Maslov and Üner to the facts of individual cases.  
29.	The two authorities which have attracted closest scrutiny during counsel’s submissions are JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10 and D v Secretary of State for the Home Department [2012] EWCA Civ 39.  Ms Jegarajah submits that there is a tension between those two authorities and that the reasoning in JO should be preferred.  Mr Rory Dunlop for the Secretary of State submits that part of the judgment in JO “should be treated with caution”.  That is a polite way of saying that the passage in question is wrong.
30.	In JO there were two appellants who came to the UK when they were young, O at the age of 4 and T at the age of 5.  O obtained indefinite leave to remain, but T did not.  Many years later the Secretary of State proposed to deport both of them on the grounds of their repeated criminal offences.  O failed in his challenge to deportation.  In T’s case, however, the Court of Appeal ordered that the matter be remitted to the Upper Tribunal for re-determination.  The important aspect of the case for present purposes is how the Court of Appeal dealt with the fact that T was not a settled migrant.
31.	At [31] Richards LJ, with whom Toulson and Mummery LJJ agreed, said this:
“The criteria in Üner are not directed in terms to an ordinary case of removal in pursuit of effective immigration control, but some of them have obvious relevance in that context too, both as regards family life and as regards private life. For example, what is said about ties arising from length of residence is obviously pertinent to an ordinary removal case: any difference in the extent or quality of ties established by a person present in this country unlawfully, as compared with those established by a lawfully settled immigrant, goes simply to weight. Similarly, the emphasis given to the position of a person who has been in the host country since childhood is relevant in the context of ordinary removal too. The first sentence of para 75 of the Maslov judgment ("for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion") does not apply in terms to the removal of a person who has spent his life in the host country unlawfully, but the fact that the person has been there since childhood is still a weighty consideration in the article 8 balancing exercise.”

32.	At [52] Richards LJ said:
“First, in distinguishing Maslov on the simple basis that JT's presence in this country had not been shown to be lawful, the tribunal seems to have regarded Maslov as being entirely irrelevant to JT's case. Whilst the point of distinction was correct as far as it went, it was not a proper basis for disregarding what was said in Maslov about the position of those who have been in the host country since early childhood or about the significance of the age at which criminal offences were committed..”

33.	D concerned a Ghanaian national, who came to the UK at the age of 6 and remained in this country unlawfully.  In his teens he turned to crime.  The Secretary of State made a deportation decision.  The tribunals and the Court of Appeal upheld that decision.  McFarlane LJ, with whom Rix and Ward LJJ agreed, did not find the reasoning in JO compelling.  At [32] he said:
“For my part, having looked carefully at the extract from JO and JT to which reference has been made, I cannot see any room for manoeuvre that would allow the very specific facts of the case to alter what is a strict and plainly expressed legal structure. Either an individual’s presence is “lawful” or “unlawful” in immigration terms. The determination of that status then in turn indicates whether or not the need for “very special reasons” applies to his case. ED cannot claim “lawful” status. Therefore, as a matter of law, Maslov does not apply to his case and the judge was entirely correct in the approach that she took.”

34.	I accept the submission of Ms Jegarajah that there is a tension between the reasoning in JO and the reasoning in D.  The question therefore arises as to which authority we should follow.  In my view the reasoning of the Court of Appeal in D should prevail.  I say this for three reasons:
i)	It is clear from the judgment in Maslov that the Strasbourg Court was specifically focusing upon settled migrants with a right of residence in the host country: see the opening words of paragraph 75.
ii)	The Strasbourg Court has stated on subsequent occasions that different considerations apply when the migrant was not lawfully settled in the host country.  See El-Habach and Jeunesse.  In Jeunesse at [104] the court indicated that the reasoning in Maslov was applicable only to settled migrants.
iii)	It is self-evident that in any assessment of a person’s right to remain in a country under ECHR article 8, it must be an important consideration whether he has any right to be there at all.
35.	Let me now draw the threads together.  I accept that paragraphs 71 to 74 of Maslov set out factors which are relevant considerations in deportation cases, but the weight attached to those factors is diminished if the deportee is unlawfully present in the host country.  I do not accept that paragraph 75 sets out principles of law which apply to criminal offenders who are unlawfully present in a country.
36.	Having reviewed the relevant authorities, I must now reach a decision in the present case.
Part 5.  Decision
37.	There are two relevant decisions of the First-tier Tribunal.  In the first, dated 24th May 2011, Immigration Judge White held that the appellant had no entitlement to asylum and no right to remain here on humanitarian or human rights grounds.  Judge White reviewed the appellant’s family circumstances and the history of his offending with some care. 
38.	In the second decision, dated 3rd February 2012, the panel took into account all the factors identified by Judge White as well as the appellant’s subsequent offending.  On both occasions the First-tier Tribunal received extensive evidence from the appellant and his family.
39.	On reading and re-reading the two First-tier Tribunal decisions, I am satisfied that the First-tier Tribunal took into account all the relevant considerations under ECHR article 8.  The tribunal did not make any express reference to Üner or Maslov.  It did not need to do so since (a) the tribunal had regard to all the relevant considerations and (b) the appellant in this case, unlike Üner and Maslov, was not lawfully present in the UK.  The statement of general principle in paragraph 75 of Maslov does not apply to this case.
40.	Accordingly I reject the first argument of Ms Jegarajah.  In those circumstances her second argument does not arise for consideration.
41.	I should say, however, that Ms Jegarajah’s second argument could not succeed.  If we were to remit this case to the Upper Tribunal for reconsideration, the Upper Tribunal would be obliged to consider the case under the new rules: see YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292.  The relevant rules are contained in paragraphs 398 to 399A of the current Immigration Rules and sections 117A to 117D of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014.
42.	In the result, if King LJ and Russell J agree, this appeal will be dismissed.
Lady Justice King:
43.	I agree.
Ms Justice Russell: 
44.	I also agree.