Earlier in the month, the Court of Appeal (Aikens LJ, Sir Colin Rimer & Sir Stanley Burnton) unanimously allowed an appeal on article 8 ECHR (see para 63) in a case involving a Ugandan man who pleaded guilty to two counts under section 8 (attendance at a place used for terrorist training) of the Terrorism Act 2006 and was therefore sentenced to 3 years and 5 months’ imprisonment. The court dismissed the appeal on article 3 ECHR. But, to reconsider the article 8 issues, the court remitted the matter to a differently constituted Upper Tribunal (UT) so that it may reassess the necessary facts and apply them to the new statutory provisions set out in sections 117A–D in the Nationality, Immigration and Asylum Act 2002 (NIAA) as inserted by section 19 (article 8 of the ECHR: public interest considerations) of the Immigration Act 2014 (the Act) and Statement of Changes to the Immigration Rules of 10 July 2014 (HC 532).
YM, the appellant, arrived in the UK in 1991 with his mother and siblings, when he was aged six and was granted Indefinite Leave to Remain ten years later but unlike his family, British nationality evaded him owing to his criminality which, even as in his early teens, included convictions for robbery and assault occasioning actual bodily harm. In his late teens, he was convicted of assaulting constables, aggravated burglary and was, for the latter crime, sentenced in 2003 to 3.5 years in a Youth Offender Institution. A year later, the Secretary of State for the Home Department (SSHD) warned YM that further criminal activity would put him at risk of deportation. YM then turned to Islam, the religion of his birth, and he married J, a British citizen who worked as a mid-wife, and their marriage produced three children (IS, AQ and IL).
Owing to the terrorism offences – attending two terrorist training camps in the New Forest in 2006 – YM’s deportation was considered to be conducive to the public good but the Asylum and Immigration Tribunal (AIT, as it then was) allowed his appeal on article 8 and under the immigration rules. However, YM breached his licence by contacting a co-defendant to the terrorist charges. He was recalled to prison in late 2009 at the same time as being arrested on suspicion of handling stolen goods but was released on licence again. He was cautioned in 2011 for a road rage incident and in 2012 he pleaded guilty to fraud in relation to an application for motor insurance and was sentenced to a 12-month community supervision order and disqualified from driving for 12 months.
The AIT’s decision was appealed by the SSHD and the Upper Tribunal (UT) found that the AIT had erred in law and in re-making the AIT’s decision the UT – after hearing oral evidence from J, YM’s mother and J’s mother and after considering expert evidence and evidence from a social worker – dismissed the appeal on both articles 3 and 8 and also “on humanitarian protection and immigration grounds”.
The deportation of foreign nationals is politically explosive and the law is in a constant state of flux. In that regard, the court noted that two questions required answers:
- First, what relevance, if any, are the new provisions in section 19 of the 2014 Act – inserting part 5A into the Nationality, Immigration and Asylum Act 2002 to the article 8 ground of appeal?
- Secondly, what relevance, if any, does HC 532 to the article 8 appeal?
From YM’s perspective, the court needed to assess whether the UT erred in law. This meant that the law needed to be considered in real time, i.e. at the time of decision. In that regard, the new provisions in the Act and HC 532 were relevant in construing Statement of Changes to the Immigration Rules of 9 July 2012 (HC 194). Equally, in the event that the court held that the UT erred in law then the new provisions and HC 532 would be engaged irrespective of the instant court remaking the decision or remitting to the UT for a fresh decision. Agreeing with most of this, the SSHD nevertheless maintained that neither the new statutory provisions nor HC 532 could be used to properly construe HC 194.
Given that in an appeal from the UT, under section 14(1) of the Tribunals, Courts and Enforcement Act 2007, the Court of Appeal’s primary task is to decide whether “the making of the decision concerned involved the making of an error on a point of law”, Aikens LJ felt that it was proper to apply the law as at the UT’s decision and his lordship held:
36. … Both the new Part 5A to the 2002 Act and the 2014 Rules [HC 532] are irrelevant to the first task that we are faced with.
However, the court could, but was not obliged to, set the UT’s decision aside in which case it could either re-make the decision or remit the matter to the UT and in either case “both the new statutory provisions and the 2014 Rules would become relevant”: para 37. Noting an absence of guidance of what to do about the new provisions in a case that has been appealed through the tribunal system, Aikens LJ thought at para 38 that the wording of the new provisions (and their interaction with article 8 and section 6 of the Human Rights Act 1998) was such that when remaking the decision (i.e. determining whether deporting YM would breach his article 8 rights) there was no “retrospectivity” in a court or tribunal applying the new statutory provisions.
Even if that analysis was not right, in the context of a new statutory provision, in response to the question “what does fairness require?”, applying L’Office Cherifien des Phosphates v Yamashita-Shinnohon Steamship Co Ltd  1 AC 486, as adopted by the House in Odelola v SSHD  UKHL 25, Aikens LJ held that:
38. … there is no unfairness in applying the new statutory provisions to a decision that has now to be made by a tribunal or court. The decision should reflect the balance that has been struck, which has some benefits and, perhaps, some drawbacks for the person concerned.
HC 532 is unambiguous that its provisions shall apply to all article 8 decisions after 28 July 2014, and decided cases such as Odelola and MF (Nigeria) v SSHD  EWCA Civ 1192 mean that absenting contrary intent the most updated version of the rules prevails irrespective of the rules in force at the time of decision.
The court noted that the issues were “neatly” divided into article 3 and article 8 issues. Aikens LJ remarked at para 9 that the provisions of section 19 of the Act (in force as of 28 July 2014) and Statement of Changes to the Immigration Rules of 10 July 2014 (HC 532) – which modified HC 194 – complicated the appeal as it was heard before their commencement but the judgment was prepared while they were in force. (The parties were, however, asked to make written submission on these issues.)
The court explained at para 35 that the issues arising on appeal were:
(1) As regards the “threshold issues”, do the provisions of the 2014 Act and the 2014 Rules have any relevance to this appeal and, if so, at what stage?
(2) Assuming that the appeal has to be decided by reference to the statutory provisions prevailing before the 2014 Act and 2014 Rules applied, how are the 2012 Rules to be applied to this case?
(3) Did the UT err on a point of law in making its decision?
(4) If the UT did err on a point of law, should this court remake the decision or should it be remitted to the UT to do so?
The Decision under Appeal
The court considered the UT decision in greater detail at paras 27 – 31 and observed that Latter and Kekic UTJJ did not accept that YM did not know what went on in the training camps and that even if he did not aim to participate in terrorist activities, this did not downplay the gravity of his offences because “the seriousness of the offences lay in the encouragement, support and approval given to those who did intend to take part by virtue of his presence.” Expert evidence regarding risk was undermined by YM’s failure to accept what when on in the training camps. Similarly, YM was unable to show that he had no ties to Uganda and the UT dismissed his appeal because it was:
[S]atisfied that the public interest in deterrence and expressing society’s revulsion at those who, even if not intending to commit acts of terrorism themselves, provide support and encouragement to those who do by attending events where they know the purpose is to provide training for such activities clearly outweighs the interference with the appellant’s private and family life and that of his partner and children. There are very serious reasons justifying deportation despite the appellant’s long residence and the impact on his family life. We are satisfied that the decision to deport the appellant is necessary and proportionate to a legitimate claim within article 8(2).
HC 194 and YM’s Case
Although the UT decided that the 2010 version of the rules prevailed, the parties agreed that the HC 194 applied to the instant case and the court noted that the error of law only mattered if applying the latter produced a different result. In MF (Nigeria), the Court of Appeal (Sir John Dyson MR, Davis & Gloster LJJ) held that where someone confronted with deportation raises article 8, HC 194 comprised a “complete code” to deal private and family life issues. Yet Aikens LJ found at para 42 that “[t]he truth is that YM’s case does not fit neatly into either Rule 398(a) or (b)” and his lordship went on to hold that:
43. The wording of Rule 398 in its 2012 version is unsatisfactory because, although it is meant to be part of a “complete code” it does not deal with the very many different possible circumstances that might arise. Nonetheless, the wording refers to “an offence” not more than one. Even if the singular included the plural, it would be necessary to import more words into Rule 398(a) if the aim was to take account of all the person’s offences historically, then tot up all the sentences of all those offences, so as to make a grand total of a period of imprisonment which, in total for a number of different offences on different occasions, amounted to at least four years. I am not prepared to manipulate the wording of Rule 398(a) to such an extent to produce that result. We have to construe the words sensibly in their normal and natural meaning.
44. Therefore, in my view, only one offence at a time has to be taken into account and the only question is whether, for that particular offence, the sentence was more than 4 years. If that is the correct approach, then YM’s case has to be regarded as falling within Rule 398(b) within this “complete code”.
On the other hand, YM was unable to rely on rule 399(b)(i) because he was unable to demonstrate that he had lived continuously in the UK at least 15 years with valid leave prior to the deportation decision in 2008. Aikens LJ said that the “age at decision” question – the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision – caused him problems. After wrestling with whether the appellant’s age (i.e. under 25 years) should run from the decision to deport or at the time of the hearing of the matter on appeal, his lordship held at para 49 that “the fair and practical construction is that the person has to be 25 at the time of the original decision of the SSHD” because such an approach complimented the surrounding provisions in rules 399 and 399A which require periods of residence in the UK of 15 or 20 years prior to the relevant immigration decision.
As regards rule 399A(b), the court saw “a kind of progressive scale overall” – taking half of someone’s life, i.e. a period of 12.5 years (discounting periods of imprisonment) for a person of just under 25 at the time of the SSHD’s original decision – and held at paras 49 and 50 that “on that basis, YM would satisfy this requirement. He was just under 24 when the SSHD made her decision on 22 May 2008.”
As for YM not having social, cultural and family ties to Uganda, the UT found against him but when it re-made the decision the Ogundimu (Article 8 – new rules)(Nigeria) v SSHD  UKUT 00060 (IAC) guidance – that the natural and ordinary meaning of the words “ties” imports a concept involving something more than merely remote and abstract links to the country of proposed deportation and removal; it involves there being a continued connection to life in that country; something that ties a claimant to his or her country of origin – was not available and Aikens LJ held that:
52. I agree with the analysis of the UT in Ogundimu. Whether this is a “hard –edged” factual enquiry, or a question of ‘evaluation’, the question in this case is: what ties does YM himself have with Uganda and would they support him in the event of a return there. Ties of other relatives, particularly YM’s mother, are irrelevant.
Perhaps troublingly for the SSHD, the court also embraced the UT’s decision in Izuazu v SSHD  UKUT 45 (IAC) and, whilst nothing turned on it in the instant case, concurred with Lord Dyson’s decision in MF (Nigeria) that the expression “insurmountable obstacles to family life with that partner continuing outside the UK” in rule 399(b)(ii) does not literally mean “insurmountable” but instead means “something less stringent than that in order to comply with Article 8.”
Observing that the UT made a string of immaterial errors of law, but setting its decision aside because YM’s ties to Uganda could not be conflated with those of other persons, Aikens LJ held that:
54. In my view, however, the UT did make one error of law that is material: that is on the question of whether YM had satisfied the UT that he had no ties with Uganda. The relevant passage of the UT’s decision is at . It recognised that YM himself had been away from Uganda for 21 years. It then referred to evidence of YM’s mother, which it found “unreliable”, so that the UT disbelieved her evidence on her links with her family there. It then concluded that “the appellant does not satisfy us that he would not have extended family [in Uganda]”. There are three errors of law in this passage. First, the UT assumed that ties of YM’s mother are either equivalent to ties of YM himself or that they go a long way to proving that he has ties. But that is not the nature of the enquiry that has to be undertaken: it is YM’s ties that count. Secondly, the UT did not conduct a “rounded assessment of all the relevant circumstances” concerning possible ties of YM with Uganda. It did not conduct any assessment at all of YM’s circumstances, as opposed to those of his mother. Thirdly, the UT did not ask itself the question: did YM have a continued connection with life in Uganda, such that he would have support were he to be returned there. It should have done.
In this regard, notwithstanding the urge to marginalise people in YM’s circumstances by using race to underpin official decision-making, it is important to recall Colin Yeo’s thoughts about keeping it pure:
The notion of inherited race as a cultural and even geographic characteristic – each race in its proper place – has regained ground in our immigration discourse and needs to be called out, confronted and eliminated. This judgment is therefore very much to be welcomed as reminding us that it is the characteristics of the individual, not their family, that are to be evaluated.
In relation to article 3, despite the dilemma of ascribing other people’s acts of terrorism to YM and the potentially adverse consequences for him upon his deportation to Uganda, Aikens LJ held at para 62 that the decisions of the AIT and UT did not disclose any error of law.
In doing so, at para 61, his lordship preferred the SSHD’s position that there was no real risk that if deported YM would be tortured because the UK would act with propriety and would impart the “true nature of the offences of YM if he were to be deported” and that he “has not engaged in any terrorist activities since his release on licence”.