Case No:C5/2016/3799  

Neutral Citation Number: [2018] EWCA Civ 1598
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER) 
Upper Tribunal Judge Bruce
DA/01745/2014

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/07/18
Before:

THE CHANCELLOR OF THE HIGH COURT
LORD JUSTICE DAVID RICHARDS
and
LADY JUSTICE ASPLIN

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Between:

		SECRETARY OF STATE FOR THE HOME DEPARTMENT		
		Appellant	
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                 MR (Pakistan)		
	
	Respondent	

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 Neil Sheldon (instructed by the Government Legal Department) for the Appellant
  John Nicholson (instructed by Duncan Lewis & Co) for the Respondent

Hearing date: 19 June 2018

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Judgment
Lady Justice Asplin:
1.	The issue on this appeal is the proper weight to be given to the public interest in the deportation of foreign criminals pursuant to the Immigration Rules and the Nationality, Immigration and Asylum Act 2002 in the context of appeals against deportation on the basis of article 8 of the European Convention on Human Rights (“Article 8”) concerning the right to respect for private and family life.

2.	This appeal by the Secretary of State for the Home Department is against a determination made by Judge Bruce on 5 July 2016, sitting in the Upper Tribunal (Immigration and Asylum Chamber) (the “UT”) upholding the determination of Judge Chambers in the First Tier Tribunal (Immigration and Asylum Chamber) (the “FTT”) dated 23 February 2016. The FTT allowed an appeal by MR, a Pakistan national, against the Secretary of State’s decision of 27 August 2014 refusing to revoke a deportation order dated 16 January 2013 (the “Deportation Order”). The Deportation Order had been made following MR’s conviction for fraud by abuse of position for which he was sentenced to 15 months’ imprisonment. The appeal was allowed on the basis of Article 8, MR having remained in the United Kingdom after the making of the Deportation Order, married a British citizen and had two children with her. The UT dismissed the Secretary of State’s appeal on the basis that despite the fact that the FTT determination did not contain a methodical analysis of MR’s Article 8 claim viewed through the framework of Part 13 of the Immigration Rules, it was well reasoned and its structure did not amount to a legal defect requiring it to be set aside: UT Determination at [24] – [26]. 

3.	The grounds of appeal are that the FTT misdirected itself in law: by failing to consider the Article 8 claim through the prism of the Immigration Rules instead of undertaking a freestanding “Razgar” analysis and the UT erred in upholding the determination and finding that the approach was immaterial to the outcome; and that the FTT failed to give proper weight to the public interest in the deportation of foreign criminals, specifically by failing to give proper weight to the nature and history of MR’s offending and his immigration status and the UT erred in upholding the approach. Permission was also granted on the ground of perversity but it was withdrawn at the hearing. 

Background 

4.	As I have already mentioned, MR is a national of Pakistan. He is 35 years of age. He first entered the United Kingdom on 25 October 2002, under a student visa. It was subsequently extended until 31 January 2010. Further leave to remain was refused and on 20 October 2011, he was notified that he was liable to be removed. 

5.	At that point he had eight convictions: for use of a false instrument; driving whilst uninsured on three separate occasions; not having a driving test certificate; resisting or obstructing a constable; driving whilst under the influence of alcohol; and failing to surrender to custody within the appointed time. He also admitted that during his student leave he had worked in excess of the hours permitted to him and that he did not manage to complete the courses that he had been given leave to study. 

6.	Further, on 30 July 2012, some eight months after MR had been notified that he was liable to be removed, he was convicted, at Manchester Crown Court, of the offence of fraud by abuse of position to which I have referred and was sentenced to 15 months’ imprisonment. It was this conviction which led to a deportation order against him dated 11 September 2012. That deportation order was revoked due to a procedural error and a further order was made on 23 October 2012. MR then made a claim for asylum which was refused on 16 January 2013, and the Deportation Order was made on the same day. 

7.	MR appealed both decisions.  The FTT dismissed his appeal in a determination promulgated on 4 March 2013 (the “First FTT Determination”). The FTT accepted that MR was having a relationship with a British woman and that Article 8 was engaged but was not satisfied that the relationship was other than tenuous. Permission to appeal that decision was refused by the UT. MR challenged the refusal of permission by way of judicial review and permission to apply for judicial review was refused on 28 June 2013. In the meantime, in May 2013, he applied to revoke the Deportation Order on the grounds that his situation had changed. He had married his British fiancée, AR, on 26 April 2013 and by November 2013 his wife was pregnant with their first child. 

8.	The Secretary of State refused MR’s application for revocation of the Deportation Order on 15 January 2014. MR commenced judicial review proceedings in relation to that decision which were subsequently dismissed. On 30 May 2014 MR made a further application to revoke the Deportation Order which was refused by the Secretary of State in the letter dated 27 August 2014 to which I have referred. It is that decision with which this appeal is concerned. 

9.	To complete the picture, I should add that MR and AR’s first child appears to have been born shortly before the Secretary of State’s refusal to revoke the Deportation Order. A second child was born to the couple shortly before the hearing of the appeal by the FTT on 17 February 2016. 

The Legal framework

10.	As Lord Reed JSC pointed out at [3] - [9] of his judgment in Ali v Secretary of State for the Home Department [2016] 1 WLR 4799, (the “Hesham Ali case”) with whom Lord Neuberger PSC, Lord Thomas CJ, Baroness Hale, Lord Kerr, Lord Wilson and Lord Hughes JJSC agreed, section 3(5) of the Immigration Act 1971 (as amended by section 169(1) of and paragraph 44(2) of Schedule 14 to the Immigration and Asylum Act 1999) provides that a person who is not a British citizen is liable to deportation from the United Kingdom, amongst other things, if the Secretary of State deems his deportation to be conducive to the public good. Section 5(1) provides that, where a person is liable to deportation under section 3(5), the Secretary of State may make a deportation order against him. Further, section 32 of the UK Borders Act 2007 (the “2007 Act”) requires the Secretary of State to make a deportation order if its provisions are satisfied and none of the exceptions in section 33 apply. There is no dispute that MR is a “foreign criminal” for the purposes of section 32. MR’s removal was expressed to be pursuant to section 32(4) of the 2007 Act and to be conducive to the public good for the purposes of section 3(5)(a) of the Immigration Act 1971.  

11.	Applications for the revocation of deportation orders are determined by the Secretary of State and his officials in accordance with Part 13 of the Immigration Rules. Paragraphs 390 to 391A are as follows:

“390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following: 

(i) the grounds on which the order was made; 
(ii) any representations made in support of revocation; 
(iii) the interests of the community, including the maintenance of an effective immigration control; 
(iv) the interests of the applicant, including any compassionate circumstances. 
390A. Where paragraph 398 applies the Secretary of State will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in maintaining the deportation order will be outweighed by other factors 
391. In the case of a person who has been deported following conviction for a criminal offence, the continuation of a deportation order against that person will be the proper course: 
(a) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, unless 10 years have elapsed since the making of the deportation order when, if an application for revocation is received, consideration will be given on a case by case basis to whether the deportation order should be maintained, or 
(b) in the case of a conviction for an offence for which the person was sentenced to a period of imprisonment of at least 4 years, at any time,
Unless, in either case, the continuation would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, or there are other exceptional circumstances that mean the continuation is outweighed by compelling factors. 
391A. In other cases, revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.”
Rule 390A requires the reader, therefore, to consider the provisions of rules A398 – 399A which appear under the heading “Deportation and Article 8”. But for paragraph 399A they are directly relevant here and are as follows: 
“A398. These rules apply where: 

a foreign criminal liable to deportation claims that his deportation would be contrary to the United Kingdom’s obligations under Article 8 of the Human Rights Convention; 
a foreign criminal applies for a deportation order made against him to be revoked.
398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and  
. . . 
(b)	the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months;
. . .
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.
399. This paragraph applies where paragraph 398 (b) or (c) applies if –
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
the child is a British Citizen; or
the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; 
and in either case
it would be unduly harsh for the child to live in the country to which the person is to be deported; and
it would be unduly harsh for the child to remain in the UK without the person who is to be deported; 
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) The relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) It would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) It would be unduly harsh for that partner to remain in the UK without the person who is to be deported.” 

12.	Lord Reed explained that the Immigration Rules are not law. They “give effect to the policy of the Secretary of State, who has been entrusted by Parliament with responsibility for immigration control and is accountable to Parliament for the discharge of her responsibilities . . ”: see the Hesham Ali case at [17]. 

13.	As Underhill LJ noted at [22] in ZP (India) v Secretary of State for the Home Department [2015] EWCA Civ 1197; [2016] 4 WLR 35, with whom Christopher Clarke LJ and Sir Timothy Lloyd agreed: 
“In broad terms, the effect of this paragraph [390A] is evidently to apply the ‘deportation and article 8’ regime of paragraphs 398-399A – which is in practice concerned with foreign criminals – not only to the initial decision whether to make a deportation order but also to a decision whether to revoke such an order once made.”  

Underhill LJ also stated that in his view, paragraph 391 applies to post deportation applications and although it was not relevant to the case with which he was concerned, that he was inclined to agree that paragraph 391A excluded not only post deportation cases within paragraph 391 but also cases within paragraph 390A so that in practice it means “in cases other than those of foreign criminals”.  
14.	Mr Nicholson on behalf of MR accepted in oral submissions that even if, contrary to Underhill LJ’s view, paragraph 391A applies to cases concerning foreign criminals, to succeed on the appeal it is necessary in the circumstances of this case, to show that the FTT and the UT had proper regard to the requirements set out at paragraph 399(a)(i)(a) and (b) and (b)(i) and (ii), including in particular the “unduly harsh” criteria. This is something to which I shall return in more detail. In the circumstances, therefore, it is not necessary to consider paragraph 391A in any detail. Nevertheless, I should add that I agree with Underhill LJ that the opening phrase of paragraph 391A must mean that it excludes the circumstances in the previous paragraph 391 which is concerned with foreign criminals who have already been deported. I also agree that in practice it must mean “in cases other than those of foreign criminals” because otherwise it would also undermine the detailed provisions set out in paragraph 390A. This is supported by the second sentence of paragraph 391A which refers to the passage of time “since the person was deported”.
15.	The right to appeal to the First Tier Tribunal against “an immigration decision” which includes the decision to make a deporttion order and to refuse to revoke such an order, is to be found in section 82(1) of the Nationality, Immigration and Asylum Act 2002 (as amended by section 26(2) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. The grounds upon which an appeal can be brought are set out at section 84(1) and include at (a), (e) and (g) respectively that the decision is not in accordance with the Immigration Rules, it is otherwise not in accordance with the law and that the removal of the appellant from the United Kingdom in consequence of the immigration decision would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s convention rights. 

16.	Since 28 July 2014, where a court or tribunal is required to determine whether a decision made under the Immigration Acts breaches a person’s Article 8 rights and as a result, would be unlawful under section 6 Human Rights Act 1998, the provisions of section 117A-D Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) apply. When considering what is defined as the “public interest question”, meaning the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2), the court or tribunal is required to have regard, in all cases, to the considerations set out in section 117B and in cases concerning the deportation of foreign criminals, to the considerations set out in section 117C: see section 117A. 

17.	Where relevant, sections 117B and C provide as follows: 

“117B Article 8: public interest consideration applicable in all cases
The maintenance of effective immigration controls is in the public interest.
. . . 
(4) Little weight should be given to—
a private life, or
a relationship formed with a qualifying partner,
that is established by a person at a time when the person is in the United Kingdom unlawfully.
(5) Little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.
. . .
117C Article 8: additional considerations in cases involving foreign criminals
The deportation of foreign criminals is in the public interest.
The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
. . .
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
. . .”
	“Qualifying partner” and “qualifying child” for the purposes of sections 117B(4)(b) and 117C(4) are defined in section 117D in a way that includes AR and her children respectively. MR also falls within the definition of a “foreign criminal” set out in that sub-section. The meaning of ‘precarious’ for the purposes of s.117B was considered in Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803; [2016] 1 WLR 4203. It was held that a person who is granted leave to enter or remain for a limited period in order to complete a particular course of study has an immigration status which is precarious and that the concept was distinct from an unlawful presence in the United Kingdom: Sales LJ at [32] – [36] with whom Sir Stephen Richards and Moore-Bick LJ agreed. MR’s immigration status, therefore, was precarious from the date of his entry into the United Kingdom in 2002 until it became unlawful in October 2011. 

18.	The meaning of “unduly harsh” in paragraph 399 of the Immigration Rules and section 117C(4) of the 2002 Act, was considered in MM (Uganda) & Anr v Secretary of State for the Home Department [2016] EWCA Civ 617, a decision of this Court which was handed down whilst the Hesham Ali case was under consideration by the Supreme Court but before it gave judgment. It is not inconsistent with that decision at least in relation to the analysis of paragraph 399 and the meaning of “unduly harsh”. Having stated that the phrase is an ordinary English expression, the meaning of which is coloured by its context, Laws LJ, with whom Vos and Hamblen LJJ agreed, went on to state that the context invited emphasis of two factors, being the public removal of foreign criminals and the need for the proportionate assessment of any interference with Article 8 rights: see [22] and [23]. Laws LJ went on: 

“24. This steers the tribunals and the court towards a proportionate assessment of the criminal’s deportation in any given case. Accordingly, the more pressing the public interest in his removal, the harder it will be to show that the effect on his child or partner will be unduly harsh. Any other approach in my judgment dislocates the “unduly harsh” provisions from their context. It would mean that the question of undue hardship would be decided wholly without regard to the force of the public interest in deportation in the particular case. But in that case the term “unduly” is mistaken for “excessive” which imports a different idea. What is due or undue depends on all the circumstances, not merely the impact on the child or partner in the given case.  In the present context relevant circumstances certainly include the criminal’s immigration and criminal history.”  

19.	Lord Reed considered the appellate decision making process in some detail at [39] – [50] of his judgment in the Hesham Ali case and endorsed the five important points set out in the opinion of the Appellate Committee delivered by Lord Bingham in the context of immigration cases involving Article 8, in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167. Of particular relevance in this case, is that appellate decision making is not governed by the Immigration Rules but that the Rules are nevertheless relevant to the determination of appeals and that the appellate body must decide for itself whether the decision is unlawful because it is incompatible with a Convention right and not merely review the previous decision: see [41] and [42]. Lord Reed went on: 
“44. Fifthly, in considering the issue arising under article 8 in the light of its findings of fact, the appellate authority should give appropriate weight to the reasons relied on by the Secretary of State to justify the decision under appeal. In that connection, Lord Bingham gave as examples a case where attention was paid to the Secretary of State’s judgment that the probability of deportation if a serious offence was committed had a general deterrent effect, and another case where weight was given to the Secretary of State’s judgment that the appellant posed a threat to public order. He continued:
“The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision-maker is likely to proceed.” (para 16)
. . . 
46. These observations apply a fortiori to tribunals hearing appeals against deportation decisions. The special feature in that context is that the decision under review has involved the application of rules which have been made by the Secretary of State in the exercise of a responsibility entrusted to her by Parliament, and which Parliament has approved. It is the duty of appellate tribunals, as independent judicial bodies, to make their own assessment of the proportionality of deportation in any particular case on the basis of their own findings as to the facts and their understanding of the relevant law. But, where the Secretary of State has adopted a policy based on a general assessment of proportionality, as in the present case, they should attach considerable weight to that assessment: in particular, that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offender’s deportation almost always outweighs countervailing considerations of private or family life; that great weight should generally be given to the public interest in the deportation of a foreign offender who has received a custodial sentence of more than 12 months; and that, where the circumstances do not fall within rules 399 or 399A, the public interest in the deportation of such offenders can generally be outweighed only by countervailing factors which are very compelling, as explained in paras 37-38 above.
. . .
50. In summary, therefore, the tribunal carries out its task on the basis of the facts as it finds them to be on the evidence before it, and the law as established by statute and case law. Ultimately, it has to decide whether deportation is proportionate in the particular case before it, balancing the strength of the public interest in the deportation of the offender against the impact on private and family life. In doing so, it should give appropriate weight to Parliament’s and the Secretary of State’s assessments of the strength of the general public interest in the deportation of foreign offenders, as explained in paras 14, 37-38 and 46 above, and also consider all factors relevant to the specific case in question. The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed - very compelling, as it was put in MF (Nigeria) - will succeed.”
	Having made clear at [52] that the idea that the Immigration Rules were “a complete code” for the determination of Article 8 case and that the Rules alone governed appellate decision making, was mistaken, he continued at [53]: 
“53. As explained at para 17 above, the Rules are not law (although they are treated as law for the purposes of section 86(3)(a) of the 2002 Act), and therefore do not govern the determination of appeals, other than appeals brought on the ground that the decision is not in accordance with the Rules: see para 7 above. The policies adopted by the Secretary of State, and given effect by the Rules, are nevertheless a relevant and important consideration for tribunals determining appeals brought on Convention grounds, because they reflect the assessment of the general public interest made by the responsible minister and endorsed by Parliament. In particular, tribunals should accord respect to the Secretary of State’s assessment of the strength of the general public interest in the deportation of foreign offenders, and also consider all factors relevant to the specific case before them, as explained at paras 37-38, 46 and 50 above. It remains for them to judge whether, on the facts as they have found them, and giving due weight to the strength of the public interest in deportation in the case before them, the factors brought into account on the other side lead to the conclusion that deportation would be disproportionate.”
20.	Mr Nicholson on behalf of MR also took us to Secretary of State for the Home Department v Barry [2018] EWCA Civ 790, an appeal which was concerned with the meaning and application of the phrase “exceptional circumstances” in paragraph 398 of the Immigration Rules, whether the FTT had erred in law in the way in which it had assessed the evidence of “very compelling reasons” against deportation and whether the FTT’s decision had been irrational. He drew our attention to Singh LJ’s analysis of the FTT determination which he described as “careful and comprehensive” having adopted the balance sheet approach commended in the Hesham Ali case: see [66] – [78]. 

The FTT and UT determinations
21.	The FTT began its Determination by setting out the reasons given by the Home Office letter of 27 August 2014 for maintaining deportation and the matters which had been taken into consideration: see [2] – [9] of the FTT Determination. In effect those paragraphs were a summary of the content of the letter and in that context, contained references at [3] and [4] to whether the Secretary of State had accepted that it would be “unduly harsh” for MR’s child and his wife respectively to live in Pakistan, or for each of them to remain in the United Kingdom if MR were deported. The phrase “unduly harsh” is also repeated at [10] under the heading “Grounds of appeal” because the basis of the appeal was that, contrary to the Secretary of State’s decision it would be unduly harsh both for the child and MR’s wife to remain in the United Kingdom if he were deported. 

22.	The FTT went on to make findings and to record the central submissions at [14] - [27]. At [19] counsel’s submission that revocation of the Deportation Order was appropriate because MR was enjoying family life and that there were changes in his circumstances (reference being made to rules 390-391A) stemming from his marriage and subsisting relationship with a British citizen wife, his two British citizen children, the length of the relationship and the fact that the Home Office accepts that it would be unduly harsh for his wife and children to accompany him to Pakistan is recorded.  The last sentence of [19] is as follows: 
“It is contended that the best interest of the two British children is to have both of their parents in their daily lives and that it would be unduly harsh for the Appellant [MR] to be separated from his wife and children and them from him.” 
Further, at [25] it is recorded that the Secretary of State had considered whether paragraphs 399 and 399A applied and had decided that they did not. The paragraph also contains a short description of the content of those two paragraphs of the Immigration Rules. 

23.	The FTT then went on to consider Article 8 at [28] and [29] and at [30] set out the guidance as to the correct approach in relation to proportionality when dealing with Article 8, given by Lord Bingham in Razgar [2004] UKHL 27. In particular, the relevant questions posed in the Razgar case are set out at [30]. The FTT went on at [31] to note: 
“The threshold for establishing an interference with private or family life is not a high one. Once the article is engaged the focus moves on to the remaining questions. Once the existence of private or family life in the UK is established its character and intensity affect the proportionality of the proposed interference with it, not its existence or its engagement.” 
24.	But for the final paragraph concerning anonymity, the remainder of the FTT Determination, from [32] – [40] is headed “Findings Article 8 ECHR” and deals with Article 8, 8(2) and proportionality. The first four threshold questions posed in Razgar are answered at [32] and [33] and having done so, the FTT noted that the “sole remaining issue was one of proportionality.” Thereafter, having mentioned MR’s family circumstances including his wife and children at [34], reference is made at [35] to the fact that: “[D]ue consideration and appropriate weight must be given to the other side of the coin; the public interest. Deportation of foreign criminals is in the public interest.” The FTT went on: 

“. . .  That ground has been canvassed already and resulted in an adverse finding at the Appellant’s appeal against deportation. Deportation on the basis of the then known arrangements namely, a relationship with an unmarried partner and no children was found on appeal to be appropriate. The situation however, has changed. The changed situation cannot undo the fact that the Appellant firmed up his relationship into marriage and had children despite the fact that his immigration position was precarious when he had no period of leave. Those, infirm, foundations remain. However, as in all these cases, in the absence of removal, life tends to go on. Circumstances change and the rules recognise that. Little in life is unchangeable. 
36. Very serious fears arise as to whether or not the Appellant’s wife could, reasonably, cope without the Appellant. She says she could not. The medical evidence, historically, seems to confirm that. The case put on behalf of the Appellant is that other members of the wife’s family would not or could not give enough support when the Appellant was on remand or serving the balance of his sentence after he pleaded guilty at the Crown Court. The wife has a long-standing problem of heart palpitations brought on by anxiety. That situation has and might again reflect adversely on the interests of the children. The uncertainty of the Appellant’s position has not helped his wife. The appellant has no one but himself to blame for that. 
Despite removal being presumed in the public interest, the interest of this largely British family has been better served when the Appellant has been present then [sic] when he has not been present. Despite the presumption of removal being in the public interest counterbalancing aspects of the evidence strongly suggest the public and family interests are also served by stability within the family in terms of the wife’s interests, her mental health and physical welfare, and the children’s best interests. 
It is not suggested from any of the material before me that the Appellant is anything other than a good father. He has certainly not by reason of his criminal convictions presented himself as a good role model. He has not by reason of his absence from the family home on account of his incarceration in prison done his family any good. But the fact remains that they want him back and need his [sic] back. Because of the particular problems of the children’s mother this is a family who require the full-time support of two parents rather than just one. A one parent regime for the children has not been successful in the past and such an arrangement does not bode well for the future. 
Standing alone this Appellant would have to take the consequences of immediate deportation. On the basis of the needs of others, his wife and the best interests of their two children; after considering the grounds on which the order was made and the representations in support of revocation including the interest of the community as a whole and the maintenance of effective immigration control; revocation of the deportation order is appropriate. Proportionality under Article 8 falls in favour of the Appellant’s family members. I allow the appeal under Art 8 ECHR.”
25.	The UT, having set out the relevant background and the central findings of the FTT, noted the grounds of appeal at [10] of its Determination. They were twofold namely: the failure to consider paragraphs 398-399A of the Immigration Rules and the relevant parts of section 117 of the 2002 Act; and failing to identify what circumstances would render MR’s deportation unduly harsh upon his children and specifically failure to weigh in the balance MR’s criminality.  Having set out the relevant Immigration Rules and the case law and summarised the submissions, the UT found as follows: 

“24.	It is clear from the determination reads as a whole that the Tribunal has the ‘complete code’ as it relates to deportation in mind. Paragraphs 2-9 contain a detailed summary of the Secretary of State’s case, wherein the Tribunal specifically notes the references to paragraphs 399 and 399A in the refusal letter. Paragraph 10 records the case for the MR that he intends to show that his removal would be ‘unduly harsh’ for his children: ‘reliance is placed on 399(a) and section 55 of the 2009 Act.’ These are the legal directions in the determination. In the context of its findings the determination makes reference again to 399 and 399A [25]. Whilst there is also express reference to ‘classic’ Article 8 principles it cannot sensibly be suggested that the Tribunal was not alert to the proper legal framework.’
25.   As to whether the Tribunal addressed the key question of whether it would be unduly harsh for these children to grow up without their father, it is again correct to say that the term is not expressly used in the findings (albeit it that it is set out earlier in the determination). I am not however satisfied that this was material, since it is apparent from the findings overall that the Tribunal understood this question to be at the heart of its enquiry. The Tribunal accepted the medical and other evidence that MR's wife was suffering from heart palpitations and mental health problems such that her ability to look after the children alone was seriously compromised. She was unable to cope without her husband when he was in prison: "his removal will impact adversely on them all" [at 24]. Whilst the separation of a child from his father might ordinarily be described as "harsh" for this family, in its particular circumstances, it was unduly so. The criticism that the Tribunal failed to weigh in the criminality of MR cannot be made out. The determination makes repeated reference to his behaviour, the conviction and sentence and to the public interest in his deportation [eg paras 1, 5, 6, 7, 15, 16, 17, 27, 35, 37, 39].
26.   I am satisfied that the First-tier Tribunal understood the tests to be applied and that the determination read as a whole is sufficiently well reasoned that the parties are able to understand the ratio of the decision. That was that in the particular circumstances of this case, the deportation of MR would have unduly harsh consequences for his children. His deportation was in the public interest but his wife's illness was such that she would be unable to cope without him and this would have adverse consequences for his children such that his removal would be contrary to their best interests.”
Discussion and Conclusion
26.	In my view, it is not clear from the FTT Determination that the FTT applied the appropriate legal test in relation to the revocation of the Deportation Order or that it had the relevant criteria and evidence in mind at all. Having recorded the reasoning in the Home Office letter and the First FTT Determination, the FTT appears to have found that the situation had “fundamentally changed” (see [26]) and embarked upon an Article 8 proportionality assessment applying the framework approved in the Razgar case. No reference was made to the relevant Immigration Rules including in particular paragraphs 390, 390A, 398 and 399. In fact, only a glancing reference to rules 399 and 399A is made in the entirety of the FTT Determination. It appears, therefore, that the FTT conducted a free-ranging enquiry as to proportionality for the purposes of Article 8 without any real consideration of whether the decision under challenge was in accordance with the Immigration Rules at all. 

27.	In doing so, in my view, the FTT made a number of material errors. The first is that it failed to ensure that proper weight was given to the public interest and to the policy adopted by the Secretary of State in the manner described by Lord Reed in the Hesham Ali case at [44], [46] and [50]. In particular, it seems to me that the FTT failed to give due weight to the public interest in the deportation of a foreign offender such as MR, who has received a custodial sentence of more than 12 months.  Although there is a reference to the “other side of the coin; the public interest” at [35] of the FTT Determination, removal being “presumed in the public interest” at [37] and the use of the phrase “maintenance of effective immigration control” at [39], they are not accompanied by any analysis or weighing of the relevant evidence. The FTT appears to have taken the view that that factor had already been dealt with in the First FTT Determination and that there was no reason to re-visit it or bring it back fully into the balance. 

28.	Secondly, although there are references to whether it would be “unduly harsh” for MR’s wife and his children respectively, to remain in the United Kingdom in his absence, they are made solely when recording the Secretary of State’s reasoning for her decision and in the grounds of appeal. There is no consideration of undue harshness in the FTT’s own reasoning at all. At best, the FTT notes at [36] that there are very serious fears as to whether MR’s wife could cope without him, at [37] that the interests of the family had been better served when MR was present and at [39] that on the basis of the needs of his wife and the best interests of his children, having taken other factors into account, the revocation of the Deportation Order was appropriate. It seems to me that that alone cannot be construed as sufficient consideration of the factor set out at sub-paragraphs 399(a)(i)(a) and (b) and (b)(ii) of the Immigration Rules and Section 117C(4) 2002 Act. In my view, even if one assumes that the FTT took account of relevant matters when considering the position of the children, of which there is no real hint on the face of the FTT Determination, its approach to the undue harshness is materially flawed. There is no suggestion that it carried out the necessary evaluation described by Laws LJ in the MM (Uganda) case at all. As he pointed out, what is due or undue depends upon all of the circumstances, including MR’s criminal and immigration history and not just the impact of the deportation on the child or the partner in question. 

29.	Thirdly, the FTT did not identify any very compelling features of the case which it would regard as sufficient to outweigh the public interest in deportation, in the event that the deportation was not considered to be unduly harsh.

30.	Fourthly, no reference whatever is made to s117A-D of the 2002 Act and it does not appear that there was any consideration of the fact that a tribunal is required to give little weight to private life or a relationship with a qualifying partner if they are established at a time with the person is in the United Kingdom unlawfully, or to private life established when the person’s immigration status is precarious: section 117B(4) and (5). As I have already mentioned, MR’s immigration status was precarious from the date of his entry in the United Kingdom in 2002 and became unlawful in October 2011. Although he became engaged to AR in 2010, his marriage and the birth of his children post-date his status having become unlawful. 

31.	It seems to me to be quite clear therefore, that the FTT did not apply the correct test or ask the appropriate questions. These errors are quite clearly material and accordingly, it seems to me that the UT also erred in its approach. In my view, there is no foundation upon which to base the conclusions at [24] – [26] of the UT Determination that the FTT understood that the question of whether it would be unduly harsh for MR’s children to grow up without him was at the heart of its enquiry or that it understood the tests to be applied. 

32.	Accordingly, for all the reasons to which I have referred, I would allow the appeal and remit the matter to the Upper Tribunal for reconsideration in accordance with the principles in this judgment. 
Lord Justice David Richards: 
33.	 I agree.
 The Chancellor of the High Court, Sir Geoffrey Vos:
34.	 I also agree. 

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