No presumption favouring revocation of deportation order after 10 years says Court of Appeal

EYF (Turkey) v Secretary of State for the Home Department [2019] EWCA Civ 592 (11 April 2019)

In relation to the proper construction of paragraph 391(a) of the Immigration Rules, which concerns the continuation of deportation orders in relation to those individuals sentenced to less than four years’ imprisonment, the Court of Appeal has held that the question of revocation of a deportation order will depend on the circumstances of the individual case. In a judgment given by Sir Ernest Ryder (Senior President of Tribunals) and Davis and Haddon-Cave LJJ, the court found that there is no presumption in favour of or against revoking a deportation order after 10 years had elapsed after the order had been made. EYF, a Turkish citizen, entered the UK with his family in 2000 and claimed asylum which was refused and the appeal dismissed in 2001. He went to Manchester Airport with his wife and seven-year old daughter on 11 February 2003 and outside the airport’s entrance he set various immigration papers alight. When police officers arrived he dowsed himself, his wife and his daughter in petrol and threatened to set himself and his family on fire. He also threw petrol at the officers. In March 2003, he was convicted of affray and sentenced to two years’ imprisonment. Thus, the Home Office wished to deport him and in November 2004 his appeal was dismissed and permission to appeal was refused. Thereafter, he became appeal rights exhausted and in September 2005 he was deported to Turkey. Subsequently, in January 2008 he applied for entry clearance in Turkey.

The application was refused owing to the extant deportation order. The First-tier Tribunal allowed his appeal but the Upper Tribunal upheld the refusal and the Court of Appeal refused permission to appeal. In November 2009, EYF applied for the deportation order to be revoked. However, the decision-maker refused to revoke the deportation order in September 2010. Again, both tiers of the tribunal dismissed his appeal and the Court of Appeal refused permission to appeal. Later in May 2013, he made another application to revoke the deportation order. The decision-maker refused to revoke the deportation order on 5 June 2015, which was the decision relevant for the purposes of the present appeal. Following the tribunal’s direction, the decision-maker made a supplementary decision on 29 March 2016 and upheld the earlier decision to revoke the deportation order and the First-tier Tribunal took this into account while dismissing EYF’s appeal on 4 July 2016. Later on 29 June 2017 the Upper Tribunal (UTJ Eyre QC) dismissed the appeal on the two grounds of appeal canvassed before him.

The Upper Tribunal

EYF was aggrieved that the First-tier Tribunal’s approach demonstrated that the judge had already made up his mind on the basis of the nature of the offending before looking at his particular circumstances and therefore the tribunal did not carry out the appropriate case specific assessment. He also complained that the judge improperly took account of the “public revulsion” about the offence he had committed.

First of all, UTJ Eyre QC judged that the first ground needed to be rejected on the basis that, when read as a whole, the decision demonstrated that the first-tier judge had not really erred in law and considered the public interest and the proportionality arising from it in light of EYF’s particular circumstances and considered those circumstances with care. Overall, the judge had conducted an express comparative exercise between the effect on EYF’s family life and the public interest deriving from his offending, in other words a proportionality balance. Thus, UTJ Eyre thought that EYF’s interpretation of the decision was artificial.

As for the second ground, it was the case that, when read in context, the first-tier judge did not treat public revulsion as a factor that was being taken into account separately and only took into account the overall gravity of the offence and that was appropriate having regard to the third proposition in paragraph 15 of OH (Serbia) [2008] EWCA Civ 694, relating to public confidence in the treatment of foreign citizens who have committed serious crimes. Therefore the appeal was dismissed on both grounds.

The Court of Appeal

As a preliminary point, Sir Ernest Ryder made the observation that the only ground on which permission was granted related to the construction of paragraph 391(a) of the Immigration Rules by the First-tier Tribunal and Upper Tribunal.

Overall, the appeal was argued on a threefold basis. First, that paragraph 391(a) should be construed as meaning that once an applicant has complied with the prescribed period (in the present case 10 years), a new “presumption” arises whereby the fact of the making of a deportation order in consequence upon the criminal offending cannot of itself justify the continuation of the order beyond the prescribed period. Second, that at the very least this should be the starting point of the court’s analysis in a case of the present type. Third, that paragraph 391(a) should be construed to mean that an applicant’s compliance with a deportation order for the period specified must carry “very significant weight” in favour of revocation, to the extent that it counterbalances the public interest in the maintenance of the deportation order.

Dismissing the appeal, the Senior President said that the proper construction of paragraph 391(a) was the only issue before him and he reminded himself that Immigration Rules should not be construed strictly as if they are statutes. The court eyed with suspicion the decision in Smith (paragraph 391(a) – revocation of deportation order) [2017] UKUT 166 (IAC), where UTJ Canavan held that the fact that a period of ten years has passed since the order was made creates a presumption that the order will be discharged unless, having considered all the individual facts of the case, the government considers that it continues to be in the public interest to maintain the order.

The court also highlighted as incorrect the view in Smith that paragraph 391(a) allows the authorities to consider on a case-by-case basis whether a deportation order should be maintained. Equally questionable was the idea that the mere fact of past convictions is not likely to be sufficient to maintain a deportation order if the “prescribed period” has elapsed and that strong public policy reasons would be needed to justify continuing an order in such circumstances.

In SU (Pakistan) [2017] EWCA Civ 1069, a case concerning a Pakistan national who illegally re-entered the UK in breach of his deportation order, the court made obiter comments that “there is no presumption either way after the 10 years have elapsed” and David Richards LJ reasoned that the proper construction of paragraph 391(a) was without presumption once the prescribed period had elapsed. ZP (India) [2015] EWCA Civ 1197 had been used to support the findings made in Smith by UTJ Canavan. In ZP (India), one of the issues was the impact on the proportionality balance of the prescribed period if that early revocation within the prescribed period was being considered and Underhill LJ was of the view that the “default position must be that deportees should serve the entirety of the prescribed period in the absence of specific compelling reasons to the contrary.”

Sir Ernest Ryder detected no support for all the propositions advanced by EYF from Underhill LJ’s conclusion and he disagreed that ZP (India) supports the reasoning of UTJ Canavan in Smith because Underhill LJ was clear that the proposition that the overall public interest in maintaining the deportation order would generally diminish over time was only accepted up to a point, which was the duration of the prescribed period. Sir Ernest was of the view that:

25. … That says nothing about the asserted existence of a new presumption at the end of the prescribed period. Indeed, it rightly in my judgment leaves the question at large. Furthermore, it is of note that the wording of the Rule changed after the decision in ZP (India) to add-in by amendment the words that are critical to the interpretation relied upon by the Secretary of State.

Reliance placed in Strasbourg case law did not take the question any further and in Maslov v Austria (2008) 47 EHRR 20 the Grand Chamber of the ECtHR pointed out that the duration of an exclusion measure is to be considered as one factor among others. It did not say that the duration of an exclusion measure had to be given presumptive weight, one way or the other, in the balancing exercise. Thus, the Senior President held that:

27. The plain language of the Rule supports the Secretary of State’s position and I would, with respect, agree with the obiter comments of David Richards LJ. There is an obvious advantage in taking the plain meaning of words as he has done: the clarity of understanding and consistency of application that are necessary in a tribunal is made all the more likely. Rule 391(a) works perfectly well without implying any further words.

28. Within the ten-year period, it will be very difficult for other factors to counterbalance the presumptive effect of the Secretary of State’s policy. That is consistent with the decision of this court in ZP (India). Once the ten-year period has elapsed it becomes easier to argue that the balance has shifted in favour of revocation on the facts of a particular case because the presumption has fallen away; but that does not mean that revocation thereafter is automatic or presumed. The question of revocation of a deportation order will depend on the circumstances of the individual case.

The outcome was consistent with the scheme described by the Supreme Court in Hesham Ali [2016] UKSC 60 where Lord Reed held at paragraph 46 that the rules applied are made by the executive in pursuit of a responsibility for which he has Parliament’s approval and trust. Furthermore, appellate tribunals have a critical duty to independently assess the proportionality of deportation in any particular case on the basis of their own fact-finding and their understanding of the relevant law. On the other hand, where the executive has adopted a policy based on a general assessment of proportionality, as in the present case, the tribunals should attach considerable weight to that assessment.

Comment

It is possible for a person to apply at any time for the revocation of a deportation order made against them. The deportation order must be revoked in order for the applicant to lawfully travel to the UK and in non-EEA cases paragraph 392 of the Immigration Rules states that applications for the revocation of a deportation order can be submitted either to the Entry Clearance Officer or directly to the Home Office.

The world of deportation orders is opaque and lawless. Often they are made on the basis of incorrect legal provisions and many times the officials who are supposed to provide consideration to revoking them just ignore any revocation requests. Despite the adoption of such dilatory tactics by decision-makers – a fate which seems not to have befallen EYF – I have managed to get them to revoke many a deportation order over the years. In some cases, they revoked the deportation order by simply writing “revoked” on the back of the order and did not bother to make a full and formal decision as such.

Prior to the arrival of the hostile environment of the Immigration Act 2014, section 82(k) of the Nationality, Immigration and Asylum Act 2002 provided that a decision to refuse to revoke a deportation order attracted a right of appeal. However any decision to refuse to revoke made on or after 10 November 2014 is subject to section 82 as amended by the 2014 Act. First of all, this means that any decision to refuse to revoke a deportation order, where the person has already been deported, made prior to 10 November 2014 will attract a right of appeal. Any decision to refuse to revoke a deportation order made on or after 10 November 2014 will not attract a right of appeal unless there is also an associated decision to refuse a protection claim, to refuse a human rights claim or to revoke protection status. Furthermore, where the person has already been deported from the UK, only a decision to revoke a non-protection human rights claim will be relevant.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Cases, Court of Appeal, Deportation, ECHR, Entry Clearance, Human Rights Act, Immigration Act 2014, Immigration Rules, Proportionality, Public Interest, Turkey and tagged , , , , , . Bookmark the permalink.

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