2022 April 14
The applicant was a British national by birth and a Pakistani national by descent. He was convicted of murder and given a mandatory life sentence with a minimum term of 15 years plus two concurrent terms of two years for violent disorder and assault. The applicant applied to be transferred to prison in Pakistan but was refused. After he was permitted to renounce his British citizenship, he applied for repatriation to Pakistan but was denied. Following his renunciation of British citizenship, he was issued with a notice of decision to make a deportation order under section 32(5) of the UK Borders Act 2007. The applicant brought a human rights claim under article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms and then applied unsuccessfully to resume British citizenship. The Secretary of State concluded that, as the applicant was a British citizen at the time of the offence, he could not be considered a foreign criminal under the definition set out by section 32 of the 2007 Act and so deportation was to be pursued under section 3(5)(a) of the Immigration Act 1971. The applicant served a further human rights claim which was refused. He appealed under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002. The First-tier Tribunal, which took the view that he was not a foreign criminal, dismissed his appeal on the grounds that deportation was proportionate. The Upper Tribunal dismissed his appeal against that decision, holding that the 2007 Act did not apply but in the context of an article 8 claim the provisions of section 117 of the 2002 Act did; that there was an inconsistency in the definition of “foreign criminal” in the 2007 Act and the 2002 Act; that Part 5A of the 2002 Act ( as implemented by section 117) established no temporal link to the date of conviction, rather the relevant date for establishing whether an offender was a foreign criminal was the date of the decision subject to a section 82 human rights appeal, and in such a case the weight to be given to former British citizenship was case-sensitive; and that at the date of the decision the applicant was a foreign criminal for the purposes of the 2002 Act, but because of the nature of his sentence, he could not rely upon the statutory exceptions to the public interest in deportation and the tribunal had been correct that he had not established that very compelling circumstances arose to prevent his removal.
On the applicant’s further appeal—
Held, appeal dismissed. The question whether the applicant’s case was covered by section 117C of the Nationality, Immigration and Asylum Act 2002, which prescribed the approach to be taken in striking the article 8 balance in the case of decisions whether to deport foreign criminals, was one of statutory construction which in turn depended on the date at which the question whether he was a British citizen had to be answered. On a true construction the relevant date for determining foreign criminal status both under the UK Borders Act 2007 and the Nationality, Immigration and Asylum Act 2002 was the date of the relevant decision—ie, under the 2007 Act the decision to make the deportation order, and under the 2002 Act the date of the decision of the court or tribunal on “the public interest question”. Although the functions of section 32 of the 2007 Act and section 117C of the 2002 Act were different, they did require or imply any difference in the approach to the date of determination of foreign criminal status. It would be remarkable for a different approach to be required where the statutory provisions in question clearly fell to be interpreted as part of a single scheme. The natural reading of both groups of provisions was that foreign criminal status was to be determined at the date of the Secretary of State’s decision to make a deportation order. The effect of section 32(5) of the 2007 Act was to require her to make such an order (albeit that she had a discretion as to the time at which it should be made—see section 34(1)); and section 117A(1) of the 2002 Act was concerned with a court or tribunal’s assessment of the lawfulness of that decision (being “a decision made under the Immigration Acts”). It followed, absent any clear indication to the contrary, that the definitions adopted for the purpose of those provisions fell to be applied as at the date of the decision the lawfulness of which was in question. Accordingly, the Upper Tribunal was right, albeit not quite for the reasons it gave, to hold that the applicant was a foreign criminal for the purpose of Part 5A of the 2002 Act, and thus that the First-tier Tribunal should have applied section 117C when considering “the public interest question”. It did not follow that the fact that the applicant was a British citizen at the date of his conviction and sentence—and, perhaps more importantly, at the date that he committed the offence—was immaterial to the outcome of the appeal: it would be a material factor in conducting the proportionality balance which remained necessary under section 117C(6). However, on analysis, the First-tier Tribunal had made no errors in conducting the proportionality assessment and concluding that the appeal against the Secretary of State’s deportation decision should be dismissed (paras 8, 25–26, 35, 61–62, 63, 64).
Richard Drabble QC, Ranjiv Khubber and Shuyeb Muquit (instructed by Turpin Miller LLP, Oxford) for the applicant.
Rory Dunlop QC and Rachel Sullivan (instructed by Treasury Solicitor) for the Secretary of State.