In Bikanu (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 34 (IAC), the Upper Tribunal has confirmed that paragraph 399D of the Immigration Rules has no relevance to the human rights exceptions to deportation set out in section 117C(4)-(6) of the Nationality, Immigration and Asylum Act 2002. President Lane and Upper Tribunal Judge Norton-Taylor accepted that:

• the statutory test is both the start and end of the “balancing exercise” carried out in such cases, and
• this test does not change depending on whether the Secretary of State is trying to remove someone in the first place, stop them from re-entering, or re-remove someone who managed to get back to the UK in breach of a deportation order. 

Background

Mr Bikanu was deported in July 2012 after receiving a 12-month prison sentence. His appeal against the decision to deport him was dismissed. Sometime in 2014, he re-entered the UK in breach of the deportation order. He was arrested in June 2018 and unsuccessfully applied to have the deportation order revoked on the basis of his Article 8 family life with his British wife and two British children. 

The First-tier Tribunal accepted that Mr Bikanu met the family life exception in section 117C(5) as his deportation would have an “unduly harsh” effect on his children. But because he had returned in breach of a deportation order, paragraph 399D of the Immigration Rules was said to apply. That paragraph states (emphasis added): 

Where a foreign criminal has been deported and enters the United Kingdom in breach of a deportation order enforcement of the deportation order is in the public interest and will be implemented unless there are very exceptional circumstances.

The First-tier Tribunal decided that the unduly harsh consequences on the children were just one factor in that assessment and the “very demanding threshold” of paragraph 399D was not met. Mr Bikanu appealed to the Upper Tribunal.

Findings in brief

The Upper Tribunal was faced with two main questions:

1. Is satisfying a section 117C exception determinative of a deportation appeal, despite what the Rules say?  
2. Can a party who succeeds on all available grounds before the First-tier Tribunal appeal to the Upper Tribunal on a point of law? This arose because, despite being the successful party, the Home Office initially wanted to challenge the undue harshness findings.

In summary, everyone agreed that the answer to the first question is yes: the Secretary of State conceded the point, and the Upper Tribunal eventually agreed that, having met section 117C(5), Mr Bikanu’s appeal should have been allowed. The First-tier Tribunal was wrong to then look at paragraph 399D.

On the second point, the tribunal concluded, in short, that the answer is no.

The deportation issue 

Act versus Rules  

The Upper Tribunal held that the only approach to Article 8 deportation cases is the structured approach in sections 117B and 117C. This is primary legislation, and under section 117A(2) the immigration tribunals are bound to apply it.

Further, these provisions have been described many times as intending to produce “a final result compatible with article 8”: paragraph 14 of NE-A (Nigeria) [2017] EWCA Civ 239 (see also CI (Nigeria) [2019] EWCA Civ 2027, paragraph 20). They are a complete answer. By contrast, it is well established that the Immigration Rules simply reflect the Home Office’s position on where the balance lies (as Lord Reed explained in Hesham Ali [2016] UKSC 60, they “do not possess the same degree of democratic legitimacy as legislation made by Parliament”). They are for the Home Office officials to follow, but have no additional part to play. Meeting an exception meant that the public interest did not require Mr Bikanu’s removal, and that should have been the end of it. 

Keeping it consistent

The tribunal also found that there is no reason in principle for applying different deportation tests at different times. The “deportation regime” covers the initial removal of someone and their banishment or exclusion from the UK for a particular period, which includes re-removing them if they have returned in breach of a deportation order. Therefore, the same test should apply throughout.

The judges also rejected the submission that paragraph 399D, whilst irrelevant to the “unduly harsh” assessment, is relevant if the person is relying on “very compelling circumstances” in section 117(C)(6). Rather, applying the statutory tests equally throughout the “deportation regime” means the section 117C(6) criteria must be applied consistently.

The procedural issue

The Secretary of State initially tried to challenge the First-tier Tribunal’s conclusions on undue harshness in her Rule 24 response to Mr Bikanu’s appeal to the Upper Tribunal. She later withdrew that challenge, so these findings are only obiter, but make for interesting reading.

Mr Bikanu’s counsel argued, relying on Anwar v SSHD [2017] EWCA Civ 2134 (discussed here), that the Secretary of State could and should have appealed against the undue harshness findings — not simply raised it in the Rule 24 response. It was too late to raise it now.

The Secretary of State argued that as the ‘winner’ on that ground, an appeal was not open to her, but that she could still challenge the reasoning of the First-tier Tribunal at the Upper Tribunal in response to the appeal: Devani v SSHD [2020] EWCA Civ 612 (previous Free Movement coverage here).  

The tribunal followed Devani, which it considered to be binding authority on the point. Appeals lie against outcomes, not findings, and it would be against well-established policy considerations for a winning party to have a right of appeal where they have obtained the result sought. Anwar related specifically to provisions on the Court of Appeal’s jurisdiction, addressed the scope of the right of appeal rather than who has it and was, in any event considered consistent with the approach adopted.

Comment

There is much to take from this decision, despite a lot being agreed between the parties. Put simply, the public interest in deportation will only require someone’s removal where the Act says so. The Immigration Rules, whatever they say, will not change that.

More broadly, the decision is clear that if and when the Immigration Rules create seemingly higher thresholds than primary legislation, arguably in any context, it should lead the Secretary of State nowhere in the tribunal. This is undoubtedly significant given the ever-increasing expansion and complexity of the Immigration Rules.

On procedure, “outcomes” for the purposes of determining appeal rights means decisions on the individual grounds. Therefore, where multiple ECHR articles are relied on, a particularised decision is needed on each of those, individually itemised in the Notice of Decision. This does not always happen, but is something to look out for and seek. The case does not change Smith (appealable decisions; PTA requirements; anonymity) [2019] UKUT 216 (IAC) — see Free Movement discussion here — which deals with how an appeal or challenge to an adverse ground should be brought.