The Court of Appeal has held that when determining whether a person had been convicted of an offence that had caused serious harm in order to fall within the definition of a “foreign criminal” under the section 117D(2) of the Nationality, Immigration and Asylum Act 2002, what matters is the actual harm caused by the particular offence, and an evaluative judgment had to be made in the light of the facts and circumstances of the offending. There can be no general and all-embracing test of seriousness. Three appellants (Mahmood, Estnerie and Kadir) in three conjoined actions sought to challenge decisions that they fell within the definition of “foreign criminal” for the purposes of the section 117D. Mahmood was a Pakistani national with indefinite leave to remain in the UK and was married to, and lives with, a Pakistani national who also has leave to remain. Mahmood was convicted of causing or inciting pornography involving a child aged between 13 and 17 contrary to section 48 of the Sexual Offences Act 2003 and was sentenced to a three-year non-custodial sentence. And he was consequently also made the subject of a 5-year Sexual Offenders Notice requirement, and a 5-year Sexual Harm Prevention Order (SHPO). He was convicted of failing to comply with the Notice requirement and a breach of the SHPO and was sentenced to a term of 6 months’ imprisonment on each count, to run concurrently.
Estnerie was a Malaysian who had claimed asylum and then made five applications for leave to remain under a false identity of a Sri Lankan national. All of his immigration applications were refused and he then pleaded guilty to six counts of being in possession of false identity documents and of seeking to obtain leave to remain by deception. Kadir was an Iranian whose application for asylum was refused and because he was a minor, he was granted discretionary leave to remain which he applied to extend on the grounds of private and family life but it was refused. However, Kadir was granted indefinite leave to remain under the legacy programme. His application for British citizenship was refused because of a conviction for causing criminal damage and he was sentenced for an offence of Assault Occasioning Actual Bodily Harm contrary to section 47 of the Offences against the Person Act 1861 in an act of “road rage” and was sentenced to a term of 8 months’ imprisonment and ordered to pay a victim surcharge of £140. Their appeals were dismissed by the FTT. Mahmood was refused permission to appeal by the UT. Estnerie’s appeal to the UT was refused. Kadir sought permission to appeal. These conjoined cases raised a short initial issue, whether the appellants committed “an offence that has caused serious harm” within the meaning of section 117D(2)(c)(ii).
Statute
Under section 117D(2) of the 2002 Act, a “foreign criminal” is defined as a someone who is not a British citizen and who has been convicted in the UK of an offence. Section 117D(2)(c) sets out three categories in respect of a foreign criminal who “(i) has been sentenced to a period of imprisonment of at least 12 months, (ii) has been convicted of an offence that has caused serious harm, or (iii) is a persistent offender.”
The Court of Appeal
Simon, Coulson and Males LJJ dismissed Mahmood’s claim for judicial review and they dismissed Estnerie’s appeal not because it was shown that any of his six offences caused serious harm, but because he was a persistent offender. They refused Kadir permission to appeal. The court first addressed the interpretation of section 117D(2) and proof and then provided conclusions in the individual cases.
In CI (Nigeria) [2019] EWCA Civ 2027, discussed here, Leggatt LJ noted at para 20 that the purpose behind Part 5A of the 2002 Act was to introduce a structured approach to the application of article 8(2) of the ECHR in the cases of foreign criminal offenders which produces in all cases a final result compatible with those rights. This was also the position in KO (Nigeria) [2018] UKSC 53, discussed here, in Lord Carnwath’s judgment. In the present cases there had been such an assessment that resulted in conclusions that were adverse to the appellants. The main issue on the appeal was the logically prior question: whether they fell within the definition of “foreign criminal”?
Interpretation of section 117D(2)
The court addressed the various issues that arose in relation to the interpretation of section 117D(2). First of all, the three categories in sub-section (2)(c) had a potential to overlap. An offender who has received a sentence exceeding 12 months may have done so because he committed an offence which caused serious harm. Indeed, an offender who persistently offended was likely to receive a longer sentence (and more than 12 months) because of a poor antecedent history.
Secondly, sub-section (2)(c) has to be given its ordinary meaning informed by its context. The three categories must be read together and “this is more than simply a conventional approach to statutory interpretation.” It is plain that the whole structure of the provision shows that an offender sentenced to less than 12 months’ imprisonment may nevertheless be treated as a “foreign criminal” if the offence caused serious harm, that “serious harm” will only be relevant when the sentence for an offence is less than 12 months. This throws light “on what may be encompassed by an offence which causes serious harm”. Although offences are conceivable which despite causing the most serious harm would not result in an immediate prison sentence of at least 12 months – for e.g. death by careless driving – “in general paragraph (c)(ii) is not concerned with the most serious kind of harm which comes before the Crown Court.”
Thirdly, the court was unpersuaded by the argument, and rejected it as unmeritorious, that allowing the “serious harm” test under section 117D(2)(c)(ii) to be satisfied where a given type of offence had been committed, merely because of a perceived generalised harm that is caused by such offending, would “trespass into territory” covered by section 32(3) of the UK Borders Act 2007 which had not been brought into legislative effect but provides that where an offender has been sentenced to imprisonment for an offence specified by the Home Secretary by order, a deportation order may be made pursuant to section 5(1) of the Immigration Act 1971. For the court, while section 32(3) of the UK Borders Act 2007 had not been brought into legislative effect, “part 5A of the NIAA 2002 was introduced so as to provide a structured approach to the issue of deporting foreign criminals by reference to rights under article 8 of the ECHR.” An attractive argument was advanced to confine the ambit of section 117D(2)(c)(ii) by reference to the words “caused” and “harm” (words in common usage and not requiring extensive commentary), but it was the view of Simon, Coulson and Males LJJ that:
39. So far as the word “caused” is concerned, the harm must plainly be causatively linked to the offence. In the case of an offence of violence, injury will be caused to the immediate victim and possibly others. However, what matters is the harm caused by the particular offence. The prevalence of (even minor) offending may cause serious harm to society, but that does not mean that an individual offence considered in isolation has done so. Shoplifting, for example, may be a significant social problem, causing serious economic harm and distress to the owner of a modest corner shop; and a thief who steals a single item of low value may contribute to that harm, but it cannot realistically be said that such a thief caused serious harm himself, either to the owner or to society in general. Beyond this, we are doubtful that a more general analysis of how the law approaches causation in other fields is helpful.
40. As to “harm”, often it will be clear from the nature of the offence that harm has been caused. Assault Occasioning Actual Bodily Harm under s.47 of the Offences Against the Person Act 1861 is an obvious example.
Mahmood unsuccessfully argued that the harm must be physical or psychological harm to an identifiable individual that is identifiable and quantifiable. The Court of Appeal saw no good reason for interpreting the provision in this way. It said that criminal law is designed to prevent harm that may include psychological, emotional or economic harm. There was no good reason to suppose a statutory intent to limit the harm to an individual. The court explained that crimes such as the supply of class A drugs, money laundering, possession of firearms, cybercrimes, perjury and perverting the course of public justice may cause societal harm. Most of the time the nature of the harm will be obvious from the nature of the offence itself, the sentencing remarks or from victim statements. The court concurred with Mahmood to the extent that harm in this context does not include the potential for harm or an intention to do harm and that where there is a conviction for a serious attempt offence, it is probable that the sentence will be more than 12 months. Simon, Coulson and Males LJJ explained further that:
42. The adjective “serious” qualifies the extent of the harm; but provides no precise criteria. It is implicit that an evaluative judgment has to be made in the light of the facts and circumstances of the offending. There can be no general and all-embracing test of seriousness. In some cases, it will be a straightforward evaluation and will not need specific evidence of the extent of the harm; but in every case, it will be for the tribunal to evaluate the extent of the harm on the basis of the evidence that is available and drawing common sense conclusions.
In LT (Kosovo) [2016] EWCA Civ 1246, Laws, Lewison and Tomlinson LJJ rejected the point that the seriousness of harm should be considered by reference to the sentencing of “dangerous offenders” under the Criminal Justice Act 2003 and the definition of the phrase “serious harm” in section 224(3) as meaning “death or serious personal injury, whether physical or psychological.” Laws LJ explained that “I should say straightaway that I am afraid that I do not consider that the references to the Criminal Justice Act or the sentencing guidelines are of any assistance to the adjudication of the questions before us on this appeal.”
The present Court of Appeal was of the view that the approach may suffer from putting the matter too high. It however decided that the fact that the offence is not characterised as one causing “serious harm” for sentencing purposes is plainly not determinative of the issue that arises under section 117D(2)(c)(ii).
Proof
Next, addressing proof, the court held that the burden rested on the Home Secretary to prove each element of section 117D(2)(c)(ii) to the civil standard (i.e. on a balance of probabilities) and the record of the conviction stands as the authoritative evidence of conviction. The court said this:
48. Neither the direct victim of a crime (if there is one) nor the prosecuting authority is a party to the tribunal proceedings. The focus of the hearing is whether the deportation decision is a proportionate response to the criminality and the legitimate aims that the Secretary of State seeks to achieve by deporting the foreign national.
The FTT is not privy to the criminal proceedings in the Crown Court and evidence may be admitted under the procedure rules (rule 14(2)(a) of the FTT Rules) whether or not the evidence would be admissible in a civil trial in the UK. The appellant may give and call live evidence in aid of his/her deportation appeal, prosecution witnesses do not generally give evidence in the FTT in relation to the appellant’s criminality which is established by the conviction that led to the decision to deport. The court rejected that argument that the Home Office must prove the case against the offender by adducing specific evidence that would include, if the seriousness of the harm were in issue, evidence from the victim.
The approach was unsupported by any proper basis and, in line with R v Perkins [2013] 2 Cr. App. R. (S) 72, a victim statement adduced in criminal proceedings has the status of evidence which a defendant has an opportunity to challenge before sentence is passed and the upshot was that no justification existed for allowing a second opportunity before the FTT. In view of the foregoing, Simon, Coulson and Males LJJ judged that:
51. … In cases where the Secretary of State relies on the causing of serious harm alone for treating an offender as a “foreign criminal”, we would expect the sentencing remarks (if available) and the victim statement (if it exists) to form part of the Secretary of State’s evidence before the tribunal. However, we recognise that in many cases a victim or those less directly affected by a crime may be reluctant to make a statement as to the harm endured by an offence, and no proper conclusions can be drawn from the lack of such a statement.
The court outrightly rejected the idea that a victim of crime should have to give evidence of the effect of that crime before a tribunal, with the prospect of cross-examination by or on behalf of the perpetrator. This would potentially cause additional harm to a victim. And it remains possible for the appellant to choose to give evidence about criminality, the FTT will know that this will not necessarily be the entire, or even a truthful, picture. Indeed as the tribunal observed at para 43 in the case of Mahmood in the present context, points had been made about the circumstances of the offending, “as described by the Appellant.” As to the weight to be accorded to the decision-maker’s views, it was notable that in the case of SC (Zimbabwe) [2018] EWCA Civ 929, the Court of Appeal doubted the observation in LT (Kosovo) that the decision-maker’s view on “serious harm” was “an important relevant factor” when applying section 117(2)(c)(iii) which deal with the “persistent offender” and any point in LT (Kosovo) was an obiter observation and LT (Kosovo) solely turned on the application of paragraph 398(c) of the Immigration Rules. Hence, the Home Secretary’s views were a starting point and the reasoning of a decision letter might be compelling, but ultimately the issues that arose under section 117D(2)(c)(ii) were matters for the tribunal. Simon, Coulson and Males LJJ held that:
56. … Provided the tribunal had taken into account all the relevant factors, had not taken into account immaterial factors and had reached a conclusion that was not perverse, its conclusion would not give rise to an actionable error of law.
With that in mind, the Court of Appeal turned to disposing of the individual cases.
Disposal
In Mahmood’s case, FTT O’Brien had, at least, been entitled to the view that serious harm had been caused by the sexual offence to the child and her parents. The court said that a tribunal is entitled to take judicial notice of the emotional and psychological impact, often long lasting, that the sexual offending generally causes to a young victim who is sexually exploited by an older man; and to find, on the balance of probabilities, that serious harm had been caused.
The test in Chege [2016] UKUT 187 (IAC), approved in SC (Zimbabwe) and in Binbuga [2019] EWCA Civ 551, pithily summarised a persistent offender as someone who “keeps on breaking the law”. This was an apt description of Estnerie, his offending encompassed six separate criminal offences committed over a period of 14 years (from 2002 to 2016). Even if his offences had not caused serious harm, Estnerie was a persistent offender and thus a foreign criminal who, the evidence irrefutably showed, had kept on breaking the law and was manifestly neither remorseful nor rehabilitated.
Finally, FTTJ Monson had been entitled to conclude that Kadir was a foreign criminal. If actual bodily harm was sufficiently serious to require a prison sentence, a tribunal would generally be entitled to conclude that the crime had caused serious harm for the purposes of section 117D(2)(c)(ii). Mahmood’s claim for judicial review was dismissed. Estnerie’s appeal was dismissed and Kadir was refused permission to appeal.
Comment
It is unnecessary to be sentenced to more than 12 months’ imprisonment to get into very serious trouble with immigration status and a move by the Home Office to pursue action for deportation. In the very hostile environment where even innocents are not spared, it is hard to win in deportation cases as judges in the FTT have little appetite for people such Mahmood who had sent a picture of his penis to a girl aged 14/15 and had caused her to take an intimate picture of herself and send it to him. Holding ILR did not save Mahmood and Kadir and they would have been better off respecting the laws of the land rather than engaging in criminality.
Despite the position in CI (Nigeria) and KO (Nigeria) that the purpose behind Part 5A of the 2002 Act was to introduce a structured approach to the application of article 8(2) of the ECHR in the cases of foreign criminal offenders which produces in all cases a final result compatible with those rights, as shown by this judgment it remains the case that section 117D(2) requires an evaluative judgment to be made and there can be no general and all-embracing test of seriousness.
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