Background

The facts of Secretary of State for the Home Department v ZP (India) [2015] EWCA Civ 1197 involved some of the worst breaches of immigration law ever seen in a reported decision: overstaying a visit visa in 2002 then organising and taking part in sham marriages, fleeing abroad in 2003 when detected and being convicted in her absence and then re-entering the UK in a false identity in 2005, obtaining settlement in this false identity in 2007 and then on detection being convicted again for breaches of immigration law and, after serving her sentence, being deported in 2009.

Undeterred, the lady concerned applied a few years later for revocation of the deportation order. After fleeing to India she had married a British citizen in 2005 and they had a child together in 2006. The husband was unaware of his wife’s history. At first the child’s time was split between India and the UK but this was considered too unsettling for him after a while and he started living permanently in the UK with his father.

An application for revocation of the deportation order was made in 2012. The application was refused in 2013 and an initial appeal to the First-tier Tribunal was dismissed. However, on appeal the Upper Tribunal allowed the appeal. The judge found that there were “exceptional circumstances” that justified revocation.

Unhappy with the outcome, the Home Office appealed to the Court of Appeal in essence on the grounds that the decision was perverse.

Immigration Rules on revocation

The Immigration Rules on revocation of a deportation order are something of a mess, having been amended without a great deal of care being taken in doing so. The Court decides, sensibly, to take these paragraphs one by one to determine which if any apply to a revocation application made from outside the UK.

Paragraph 390

The first is paragraph 390:

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.

Of this Underhill LJ says:

This plainly applies to all applications to revoke a deportation order, whether made by a foreign criminal or not and whether or not the applicant is in the UK. However, its provisions are at a very general level and for our purposes are in practice superseded by the more specific provisions which follow.

Paragraph 390A

The next paragraph is 390A:

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.

This refers to certain later paragraphs we also need to consider:

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

(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good 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; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim 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 deportation will be outweighed by other factors.
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

(i) the child is a British Citizen; or

(ii) 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

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection, and

(i) the person has lived in the UK with valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.

399A. This paragraph applies where paragraph 398(b) or (c) applies if –

(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

Of paragraph 390A and its interaction with paragraphs 398 to 399A Underhill LJ concludes:

In broad terms the effect of this paragraph is evidently to apply the “deportation and article 8” regime of paragraphs 398-399A – which is in practice concerned with foreign criminals[3] – 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.

In one recent case I acted in, I argued that paragraphs 398 to 399A should apply to an out of country revocation application because if they did my client would succeed, having (rather harshly) been deported following a sentence of less than 12 months. On the facts of ZP (India), though, the appellant would have failed having been sentenced to 12 months in prison. Mr Biggs for the appellant therefore argued that they did not apply to an out of country revocation, and Underhill LJ appears initially to agree:

He said that that followed from the initial words of the paragraph – “where paragraph 398 applies” – since paragraph 398 by its own terms only applies “where a person claims that their deportation would be contrary to [article 8]”, and that language is inapt to a case where they have already been deported; the same is true of the following provisions, which are concerned with whether “deportation” – which would not naturally include the continued exclusion of a deportee – is conducive to the public good. That of course parallels his submissions in relation to section 33 of the 2007 Act, and again it seems to me clearly correct. It is not only the natural reading of the words used, but it makes sense of the existence at paragraph 391 of a separate provision covering “the case of a person who has been deported”. In my view the rule-maker has deliberately provided separately for the two separate situations, with paragraph 390A applying to pre-deportation revocation applications and paragraph 391 to post-deportation applications.

However, this is a matter of form rather than substance, as we see when we move on to the next paragraph

Paragraph 391

The next paragraph is 391:

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, 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.

Of this paragraph Underhill LJ says:

That paragraph states the Secretary of State’s policy as to the proper length of time for which a deportation order should “continue” – i.e. in practice the length of time before an application for leave to enter will be entertained. I will refer to this as “the prescribed period”. In the present case the prescribed period is ten years from the date of the making of the order, since the Respondent was sentenced to less than four years’ imprisonment. However, that policy is expressly stated not to apply in two distinct circumstances – either where continuation would be contrary to the ECHR or the Refugee Convention (“the Conventions exception”) or where “there are other exceptional circumstances that mean the continuation is outweighed by compelling factors” (“the sweep-up exception”).

He goes on to say that the approach to proportionality and breaches of human rights should be essentially the same whether paragraph 390A or paragraph 391 applies, despite differences between those two paragraphs:

But the difference in drafting structure does not require a different approach as a matter of substance, since we know from MF that the exercise required by paragraph 398 is the same as that required by article 8. Likewise, while the use in the sweep-up exception of the phrase “other exceptional circumstances [involving] compelling factors” no doubt implies that it is only in such circumstances that the Secretary of State’s general policy will be displaced by article 8, that too is consistent with the approach in MF. As for the differences in wording, they may be vexing to the purist but they are plainly not intended to reflect any difference of substance. The exercise required in a case falling under paragraph 391 is thus broadly the same as that required in a case falling under paragraph 390A or paragraph 398. Decision-takers will have to conduct an assessment of the proportionality of maintaining the order in place for the prescribed period, balancing the public interest in continuing it against the interference with the applicant’s private and family life; but in striking that balance they should take as a starting-point the Secretary of State’s assessment of the public interest reflected in the prescribed periods and should only order revocation after a lesser period if there are compelling reasons to do so.

Turns out I was right, I think: the levels at which the sentencing tariffs are set in paragraphs 398 to 399A is highly relevant to whether continued exclusion is proportionate, including in revocation cases where the person has already been deported and is applying for revocation from abroad. Later in the judgment at paragraph 34 Underhill LJ notes that the UT judge followed the incorrect approach by applying paragraphs 398 to 399A when he should not but finds that there was “no difference of substance.”

Underhill LJ goes on to hold that mere passage of time by itself cannot be sufficient justification for revocation. The norm will be that the 10 year period will apply:

…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

Where there are compelling reasons for revocation, though, the longer that a person has been excluded from the UK, the stronger that person’s case will be.

Paragraph 391A

The next paragraph in the scheme of the rules is paragraph 391A:

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.

Of this, Underhill LJ says:

The phrase “in other cases” at the beginning of paragraph 391A must at least exclude the cases covered by the immediately preceding paragraph, i.e. paragraph 391, so that it certainly has no application in the present case. It is not necessary for us to decide whether its effect is to exclude also cases covered by paragraph 390A – so that in practice it means “in cases other than those of foreign criminals” – but the Government Legal Department submitted that that was plainly the intention, and I am inclined to agree.

The paragraph seems to add little given the amendment into the rules of the earlier paragraphs, basically.

Paragraph 392

The final paragraph covered is 392:

392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.

This simply clarifies the effect of revocation of a deportation order. A person who might qualify under the Immigration Rules can apply to re-enter after a deportation order is revoked; a person who does not have a basis for re-entering the UK under the rules, for example as a spouse, student or visitor, will not really benefit from revocation because he or she will have no real basis for re-entry.

Conclusion

On the facts, the Court of Appeal dismissed the Secretary of State’s appeal and upheld the decision of the Upper Tribunal allowing the appeal. The Upper Tribunal judge directed himself correctly and reached a decision he was entitled to reach on the evidence.

The effect is that the deportation order is revoked and the appellant will be entitled to apply to come to the UK under the Immigration Rules, for example as a visitor or a spouse.

Underhill LJ ends with a more general comment:

I do not believe that the Secretary of State need fear that the decision of the UT in this case, or our upholding of it, will open the gates to a flood of cases in which post-deportation applicants who have had to leave children in the UK are granted early revocation of their deportation notices. It is only where the tribunal is persuaded that, exceptionally, there are very compelling reasons which outweigh the public interest in the order continuing for the full prescribed term that such revocation may be allowed. Each case will turn on its own facts, and the facts of the present case should not be taken as establishing any kind of benchmark.

Despite this warning, I cannot help but compare the facts of this case against the facts of the revocation case in which I recently acted. In my case the offending was far less serious and there were two children affected, one of whom had serious behavioural difficulties. We lost; the judge who decides a case certainly does make a difference.