Neutral Citation Number: [2014] EWCA Civ 256

Case No: C5/2013/2608
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE McKEE AND UPPER TRIBUNAL JUDGE O’CONNOR
DA/00622/2012
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 13th March 2014
Before :

LORD JUSTICE JACKSON
LORD JUSTICE ELIAS
and
LORD JUSTICE BEATSON
- - - - - - - - - - - - - - - - - - - - -

Between :

	SE (ZIMBABWE)	Appellant	
	- and -		
	THE SECRTARY OF STATE FOR THE HOME DEPARTMENT	Respondent	

- - - - - - - - - - - - - - - - - - - - -

(Transcript of the Handed Down Judgment of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr Raza Husain QC, Mr Eric Fripp and Mr David Chirico (instructed by Luqmani Thompson & Partners) for the Appellant
Mr Mathew Gullick (instructed by Treasury Solicitor) for the Respondent

Hearing date: 13th February 2014

- - - - - - - - - - - - - - - - - - - - -

Judgment
Lord Justice Jackson: 
1.	This judgment is in eight parts, namely:
Part 1. Introduction 	(paragraphs 2 to 9)	
Part 2. The facts 	(paragraphs 10 to 16)	
Part 3. The tribunal proceedings 	(paragraphs 17 to 26)	
Part 4. The appeal to the Court of Appeal 	(paragraphs 27 to 30)	
Part 5. The first ground of appeal: was the Upper Tribunal right to set aside the decision of the First-tier Tribunal? 	(paragraphs 31 to 42)  	
Part 6. The second ground of appeal: did the Upper Tribunal err in treating SE’s prospects of rehabilitation as irrelevant? 	(paragraphs 43 to 56)	
Part 7. The third ground of appeal: SS (Nigeria) 	 (paragraphs 57 to 61)	
Part 8. Executive summary and conclusion 	 (paragraphs 62 to 66).	

Part 1. Introduction
2.	This is an appeal by a Zimbabwean national against a decision of the Upper Tribunal that he should be deported, following his conviction for wounding with intent to cause grievous bodily harm.  The issues in this appeal are whether the Upper Tribunal was entitled to set aside the decision of the First-tier Tribunal; how, if at all, the prospects of rehabilitation should be taken into account in an evaluation under article 8.2 of the European Convention on Human Rights (“ECHR”); and whether the Upper Tribunal was correct to follow the Court of Appeal’s decision in SS (Nigeria) v SSHD [2013] EWCA Civ 550.
3.	The subject of these proceedings has been given anonymity and is referred to as SE.  SE was the appellant before the First-tier Tribunal and the respondent before the Upper Tribunal.  He is the appellant in this court.  I shall refer to him as SE throughout.
4.	Section 3(5) of the Immigration Act 1971 provides that a person who is not a British citizen is liable to deportation from the UK, if the Secretary of State deems his deportation to be conducive to the public good.
5.	Section 32 of the UK Borders Act 2007 (“the 2007 Act”) provides:
“Automatic deportation
 (1) In this section “foreign criminal” means a person— 
(a) who is not a British citizen, 
(b) who is convicted in the United Kingdom of an offence, and 
(c) to whom Condition 1 or 2 applies. 
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months. 
(3) Condition 2 is that — 
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and 
(b) the person is sentenced to a period of imprisonment. 
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good. 
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).”

6.	Section 33 of the 2007 Act provides:
“Exceptions
 (1) Section 32 (4) and (5) — 
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and 
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions). 
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach — 
(a) a person's Convention rights, or 
(b) the United Kingdom's obligations under the Refugee Convention. 
(3) Exception 2 is where the Secretary of State thinks that the foreign criminal was under the age of 18 on the date of conviction. 
(4) Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties.”

7.	For present purposes, I do not need to set out the latter parts of section 32 or section 33 of the 2007 Act.
8.	Article 8 of the ECHR provides:
“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.”

9.	After setting out the relevant legislation, I must now turn to the facts.
The facts
10.	SE is a citizen of Zimbabwe, born on 8th March 1972.  He came to the UK on 29th June 2001 and was granted six months leave to enter as a visitor.  He remained in the UK after that leave had expired.  On 26th April 2002 SE applied for leave to remain as a student.  That application was refused.  On 13th December 2002 he applied for leave to remain based on ancestry.  In support he submitted a document purporting to be his grandfather’s birth certificate.  The Secretary of State refused the application because that document was false.  On appeal Immigration Judge Callow dismissed SE’s appeal under the Immigration Rules, but held that he was entitled to remain in the UK under ECHR article 8.
11.	Unfortunately, while living in the UK SE did not keep out of trouble.  On 30th May 2002 he committed an assault occasioning actual bodily harm.  He was cautioned for this offence.  On 23rd August 2006 SE was found in possession of cocaine.  He pleaded guilty to this offence and was ordered to do 120 hours of unpaid work.
12.	On 22nd August 2009 SE went to a nightclub with Ms KK, who was the mother of one of his children.  He became involved in a dispute with a man called R.  The outcome of this fracas was that SE hit R in the face with a glass.  R suffered appalling facial injuries.  SE was arrested and in due course faced a charge of wounding with intent to cause grievous bodily harm contrary to section 18 of the Offences against the Person Act 1861. 
13.	There was a delay of 15 months before SE stood trial.  There were two significant events during this period.  On 12th June 2010 SE married Ms ZC, who became the step mother of another of SE’s children, ME.  After that SE continued seeing Ms KK.  On 29th June 2010 there was a domestic dispute in which SE assaulted Ms KK.  He received a caution for battery in respect of that offence.
14.	SE’s trial for the offence of wounding with intent took place at Southwark Crown Court in November 2010.  He pleaded not guilty, asserting that he had been acting in self-defence.  The jury rejected his evidence and returned a verdict of guilty.  The trial judge, Her Honour Judge Kent, sentenced SE to four and a half years imprisonment.
15.	Pursuant to section 32 (5) of the 2007 Act the Secretary of State concluded that she was obliged to make a deportation order in respect of SE.  She notified SE of that decision.  
16.	SE was aggrieved by the decision to deport.  Accordingly he commenced tribunal proceedings.
Part 3.  The tribunal proceedings
17.	SE appealed to the First-tier Tribunal against the Secretary of State’s decision to deport him on the ground that such deportation would constitute a breach of ECHR article 8.  The First-tier Tribunal allowed SE’s appeal in a written determination dated 14th December 2012.
18.	The tribunal’s reasoning was as follows.  SE enjoyed family life with his wife, ZE, and his daughter ME (by then aged 18).  They had both visited him regularly in prison.  He did not enjoy family life with his former girlfriend, KK, or their son, JK.  Neither KK nor JK had visited SE in prison.  Mrs ZE had a responsible job in England and she could not be expected to relocate to Zimbabwe.  Deportation to Zimbabwe would probably sever SE’s relationship with Mrs ZE and ME for many years.  The tribunal took into account the seriousness of SE’s offence, the fact that it was not premeditated, the length of SE’s stay in the UK (11 years) and SE’s improved conduct since his conviction.  After carrying out the balancing exercise under article 8, the tribunal concluded that the balance came down in favour of SE.
19.	The First-tier Tribunal summarised its conclusions in paragraph 32 of its determination as follows:
“We have not found this an easy matter to determine. However, we balance against the Appellant’s undoubtedly serious offending and the fact the State has an interest in deporting foreign criminals, the fact that he has a wife who is British who remains devoted to him and with whom it is expected he will live following his release from prison and who it is not reasonable to ask to return with the Appellant to Zimbabwe.  He also has his daughter here who is in the process of making application to the Court which may lead to her having the right to remain in the United Kingdom. We accept that we have no means of knowing what impact the Appellant’s removal would have on JK. The Appellant says he has learned his lesson. We hope that is indeed the case. We find that the balance is just tipped in his favour and for these reasons that it would be disproportionate for him to be removed from the United Kingdom.”

20.	The Secretary of State was aggrieved by the First-tier Tribunal’s decision.  She appealed to the Upper Tribunal.
21.	The Upper Tribunal concluded that the First-tier Tribunal did not pay proper regard to the seriousness of SE’s offending, the need for deterrence or society’s revulsion at such criminality, as it was required to do by N (Kenya) v SSHD [2004] EWCA 1094; [2004] INLR 612 and other authorities.  Accordingly the Upper Tribunal set aside the First-tier Tribunal’s determination and decided to re-make the decision.
22.	By a determination dated 12th July 2013 the Upper Tribunal allowed the Secretary of State’s appeal and re-instated her decision that SE should be deported.  The Upper Tribunal’s reasoning was as follows.  The tribunal took note of SE’s excellent progress in custody.  Whereas originally SE posed a high risk of harm to the public, he now only posed a medium risk.  The tribunal also took into account the strong ties between SE and his wife and daughter.  Nevertheless the seriousness of SE’s offence of wounding with intent and the public interest in deportation outweighed these considerations.  The Upper Tribunal also took into account SE’s other criminal offences.  
23.	In reaching its decision the Upper Tribunal applied the principle stated by Laws LJ in SS (Nigeria) v SSHD [2013] EWCA Civ 550.  This principle is that the public interest in deporting foreign criminal carries particular weight because the policy that foreign criminals should be deported has been expressed in primary legislation.  Accordingly a foreign criminal could not make out a claim to remain here under article 8 unless he had “a very strong claim indeed”.
24.	One of the arguments advanced by SE was that his rehabilitation was progressing well in the UK.  The probation officers and other professional staff were doing a good job.  That should be allowed to continue in the UK.
25.	The Upper Tribunal rejected this argument in paragraph 19 of its decision.  That paragraph reads as follows:
“Apart from the deception mentioned above, SE record has been tarnished by two cautions for domestic violence, and a conviction for possession of cocaine. All these factors serve to increase the weight which the index offence puts on the public interest side of the balance. On the other side can be put the genuine efforts which SE has made since being sent to HMP Bullingdon to learn from his mistakes and change his ways. That he has made considerable progress is attested not just by his wife and daughter, but by the objective appraisal of the NOMS professionals who have worked with him and observed him over a long period. One of the purposes of prison is rehabilitation, and SE certainly appears to be on his way to complete rehabilitation, even if – as the medium risk assessment shows – he is not there yet. If he were a Union citizen, his prospects of rehabilitation would play an important part in an appeal against deportation: see Essa (EEA: rehabilitation/integration) [2013] UKUT 316 (IAC). It is not, however, a factor in appeals by non-EEA nationals.”

26.	SE was aggrieved by the Upper Tribunal’s decision.  Accordingly he appeals to the Court of Appeal.
Part 4.  The appeal to the Court of Appeal
27.	By an appellant’s notice dated 10th September 2013 SE appealed to the Court of Appeal on three grounds.  The first ground is that the Upper Tribunal erred in setting aside the decision of the First-tier Tribunal.  The second ground is that the Upper Tribunal erred in treating SE’s prospects of rehabilitation as irrelevant.  The third ground is that the Upper Tribunal erred in treating itself as bound by SS (Nigeria) v SSHD [2013] EWCA Civ 550.
28.	I should explain that there were originally four grounds of appeal.  SE abandoned his second ground before skeleton arguments were exchanged.  I have therefore re-numbered the surviving grounds of appeal as one, two and three.
29.	This appeal was heard on 13th February 2014.  Mr Raza Husain QC, leading Mr Eric Fripp and Mr David Chirico, appeared for SE.  Mr Mathew Gullick appeared for the Secretary of State.  I am grateful to counsel on both sides for the clarity of their submissions and the economy with which they were presented.
30.	I shall now address the three grounds of appeal, starting with the first ground.
Part 5. The first ground of appeal: was the Upper Tribunal right to set aside the decision of the First-tier Tribunal?
31.	N (Kenya) v SSHD [2004] EWCA Civ 1094; [2004] INLR 612 was a case in which the Court of Appeal upheld an order for the deportation of a foreign criminal, despite his reliance upon article 8 of ECHR, some three years before the 2007 Act was enacted.  May LJ (with whom Judge LJ agreed) held that the risk of re-offending was only one factor to take into account.  Where someone has been convicted of a very serious crime, the need to deter and the need to express society’s revulsion at such criminality are even more important factors to be taken into account.
32.	Mr Husain in his submission described the approach of the Court of Appeal in N (Kenya) as “three dimensional”.  He submitted that, when carrying out an article 8 evaluation in respect of a foreign criminal, the decision-maker must consider three separate aspects of the criminal offence.  These are (i) the risk of re-offending, (ii) the need to deter others and (iii) the need to express society’s revulsion at the criminality.  I agree with that analysis.
33.	In N (Kenya) May LJ referred to “very serious crimes”, because the appellant’s crimes in that particular case were very serious.  They attracted a sentence of eleven years imprisonment.  But the same three dimensional approach is necessary in other cases.  If the offences are less serious, the need to deter may be reduced and society’s revulsion may be less strong.  Nevertheless it is always appropriate to consider all three aspects of the individual’s offences, when assessing whether his article 8 rights to private and family life should prevail.
34.	In the present case the First-tier Tribunal took into account the risk of re-offending.  Unfortunately the tribunal did not take into account the need to deter.  Nor did the tribunal consider the need to express society’s revulsion at a crime as serious as wounding with intent contrary to section 18 of the Offences Against the Person Act 1861.  In my view, therefore, that decision was flawed and liable to be set aside.
35.	Mr Husain does not dispute that proposition.  He contends, however, that the Secretary of State failed properly to raise this point in her notice of appeal to the Upper Tribunal.  As a consequence he submits that the Upper Tribunal had no jurisdiction to hear the point.
36.	Mr Gullick for the Secretary of State contends that this point was sufficiently pleaded.  He relies upon paragraphs 4 and 5 of the notice of appeal from the First-tier Tribunal to the Upper Tribunal.  These paragraphs read as follows:
“4. The Tribunal’s findings at paragraph 32 of the determination contain several significant omissions.  In the first place, while the Tribunal notes the seriousness of the appellant’s offending, it fails to draw any adverse conclusions from this. The appellant committed a violent act that resulted in a conviction of four and a half years. The presumption in such cases is to deport. The Tribunal had no regard to that.
5. In addition, the Tribunal has had no real regard to the risk assessment in this case. At paragraph 31 of the determination the Tribunal found the risk level to the public remains high. However, beyond the rather neutral aspiration that the Tribunal hopes that the Appellant has learned his lesson, there is no clear finding based on the risk of reoffending or of harm to the public. It is respectfully submitted that this is an unacceptable approach to dealing with a violent offender.” 

37.	In my view the Secretary of State’s pleading, though perhaps not a masterpiece or a model of clarity, does properly raise the point.  In paragraph 4 the Secretary of State emphasises the seriousness of SE’s offending.  She states that the tribunal “fails to draw any adverse conclusions from this”.  The “adverse conclusions” which should have been drawn include all three factors identified in paragraph 32 above. 
38.	In paragraph 5 the Secretary of State refers separately to the risk of re-offending and harm to the public.  The “harm to the public” must include the failure to deter other aspirant foreign criminals.  
39.	The final sentence of paragraph 5 says that allowing SE to remain in the UK is “an unacceptable approach to dealing with a violent offender”.  This sentence refers (amongst other things) to society’s revulsion at such violent offending.  The word “unacceptable” in the context of the final sentence of paragraph 5 means unacceptable to society generally.
40.	Let me now draw the threads together.  The Secretary of State sufficiently identified the First-tier Tribunal’s legal errors in her notice of appeal.  Those errors were fatal to the tribunal’s decision.  Accordingly the Upper Tribunal was correct to set aside that decision.
41.	In any event I would be extremely reluctant to find that the Upper Tribunal had no jurisdiction in circumstances where the point was argued before the Upper Tribunal with no objection by the appellant.  Had any objection been made, the issue could have been placed squarely before the Upper Tribunal by amendment if necessary.
42.	I reject SE’s first ground of appeal and must now move on to the second ground.
Part 6. The second ground of appeal: did the Upper Tribunal err in treating SE’s prospect of rehabilitation as irrelevant?
43.	This ground of appeal is an attack upon the Upper Tribunal’s reasoning in paragraph 19 of its determination.  I have set out the whole of paragraph 19 in Part 3 above.
44.	It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE’s good progress to date in rehabilitation.  The tribunal treated that as a factor in SE’s favour.
45.	The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration) [2013] UKUT 316 (IAC).  This was a decision concerning EU citizens who committed offences and were being considered for deportation.  Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend.  Accordingly, if the offender’s rehabilitation is incomplete, it is relevant to consider the offender’s prospects of future rehabilitation (a) if he is deported to his home state and (b) if he remains in the host state.
46.	I agree with that analysis.  The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime.
47.	What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national.  I agree with that proposition.  
48.	SE is a violent offender, who has made good progress towards rehabilitation.  At the time of sentence, his risk of re-offending was assessed as high.  That risk is now assessed as medium.  It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process.  However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.
49.	From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals.  On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR.  The prospective deportee cannot say:
“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff.  If deported to my home country, I am likely to return to my criminal ways.  Therefore I should stay here.”

50.	In my view, absent exceptional circumstances, this is not a valid argument.  The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life.
51.	In relation to this issue, Mr Husain placed reliance on this court’s decision in Pawandeep Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075; [2005] QB 608.  In that case this court held that a child was entitled to entry clearance so as to join his adoptive parents, even though the adoption was only valid under Indian law, not English law.  In reaching this conclusion the Court of Appeal had regard to the potential for development of family life in the future: see paragraph 38 of the judgment of Dyson LJ, with which Chadwick LJ and Munby J agreed.
52.	Mr Hussain submits that this shows that the court looks to the future as well as the past in determining article 8 claims.  I accept that in Pawandeep Singh the court looked not only at the past relationship between the adoptive parents and the applicant, but also at the likely future development of that relationship.  This enabled the court to make an overall assessment of the family life and the strength of the bonds.
53.	On the other hand, I do not see how the ratio or the reasoning of Pawandeep Singh is relevant to the present problem.  There is no issue about the existence of family life or the strength of the bonds between SE and his two family members.  The Secretary of State contends that the public interest in deporting SE is so great as to outweigh his right to private and family life in the UK.  This is because of the seriousness of his offence, the need to deter others and the need to express public revulsion at SE’s criminality.  The Upper Tribunal took into account in SE’s favour his steady progress towards rehabilitation, but held that the factors identified by the Secretary of State outweighed SE’s article 8 rights.
54.	The Upper Tribunal rejected the argument set out in paragraph 49 above.  In my view the tribunal was right to do so.  Pawandeep Singh does not afford support for that argument.
55.	SE’s prospects for future continued rehabilitation may well be worse in Zimbabwe than in the UK.  Nevertheless that is a factor which the Upper Tribunal rightly excluded from consideration when carrying out the evaluation under article 8 of ECHR.
56.	Accordingly the Upper Tribunal’s analysis in paragraph 19 of its decision was correct.  I reject the second ground of appeal and must now move on to the third ground.
Part 7. The third ground of appeal: SS (Nigeria)
57.	The third ground of appeal involves a lengthy attack upon the reasoning and conclusions of Laws LJ in SS (Nigeria) with which the other members of the court agreed.  This attack occupies eleven pages of SE’s skeleton argument.
58.	I can see that the decision in SS (Nigeria) does give rise to difficult issues, which might merit further argument in an appropriate case.  One important issue concerns the extent to which Parliament can pre-empt the operation of the evaluative exercise under ECHR article 8, by enshrining a particular policy objective in primary legislation.  It may be said that the conclusions of the court in SS (Nigeria) go some way beyond AP (Trinidad & Tobago) v SSHD [2011] EWCA Civ 551 and the other authorities to which Laws LJ refers.  But none of these issues are matters for this court.
59.	This court is bound by the unanimous conclusions of the Court of Appeal in SS (Nigeria).  The Upper Tribunal in the present case correctly understood and applied the reasoning of this court in SS (Nigeria).  If the correctness of SS (Nigeria) is to be challenged, that must be a matter for the Supreme Court, in the event that permission to appeal is granted.
60.	The present case may not be a suitable vehicle for such a challenge.  I say that because in the circumstances of this case a proper evaluation of the conflicting considerations under ECHR article 8 would appear to favour deportation, even if SS (Nigeria) is disregarded.
61.	Accordingly I reject the third ground of appeal.
Part 8. Executive summary and conclusion
62.	SE, the appellant in this court and respondent before the Upper Tribunal, is a Zimbabwean national aged 41, who came to the UK in 2001.  On 19th November 2010 SE was sentenced to four and a half years imprisonment following his conviction for wounding with intent to cause grievous bodily harm.  The Secretary of State made a deportation order pursuant to section 32 of the UK Borders Act 2007.
63.	SE challenged the lawfulness of the deportation order, asserting that he had a right to remain in the UK under article 8 of ECHR.  This is because of his relationship with his wife and adult daughter.  The First-tier Tribunal upheld that challenge.  The Upper Tribunal reversed the First-tier tribunal’s decision and reinstated the deportation decision.
64.	SE appeals to the Court of Appeal on three grounds.  He contends that the Upper Tribunal erred (i) in setting aside the First-tier Tribunal’s decision, (ii) in disregarding the prospects of rehabilitation and (iii) in following SS (Nigeria) v SSHD [2013] EWCA Civ 550.
65.	I reject each of those grounds.  As to (i), the First-tier Tribunal failed to consider all relevant aspects of SE’s offending and this argument was properly raised in the Secretary of State’s notice of appeal.  As to (ii), the Upper Tribunal properly took into account SE’s good progress towards rehabilitation.  The fact that SE will receive less support in Zimbabwe than in the UK in relation to future continued rehabilitation is not a relevant factor under article 8 of ECHR.  As to (iii), this court is obliged to follow SS (Nigeria).  The correctness of that decision can only be challenged before the Supreme Court.
66.	If my Lords agree, this appeal will be dismissed.
Lord Justice Elias:
67.	I agree.
Lord Justice Beatson:
68.	I also agree.