United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005352
	First-tier Tribunal No: HU/62618/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

25 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE L SMITH
DEPUTY UPPER TRIBUNAL JUDGE D ZUCKER

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

ERIND KOKA
(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr N Wain, Senior Home Office Presenting Officer

For the Respondent: Mr D Bazini instructed by Warren Grant Solicitors

 

Heard at Field House on 20 February 2025

 

DECISION AND REASONS

1.        Mr Koka, a citizen of Albania, who is now 33 years of age. He first attempted to enter the United Kingdom on 31 October 2012 by air with the use of false documents. Entry was refused. He was removed to Finland. On 8 May 2013 he was found, without documentation, hidden in a trailer by Border Agency staff at Dunkerque. The following day he was removed to France. In September 2018 he was discovered in a campervan in Coquelles by the French Authorities and removed from the United Kingdom. However, eventually he gained entry, albeit unlawfully, by lorry to the Unted Kingdom, he claims, on 3 October 2019. On 21 July 2020 he was arrested by South Wales Police.

2.        Significantly for the purposes of this appeal, on 4 February 2020, Mr Koka was convicted at Cardiff Crown Court for being concerned in the production by another of a Class B controlled drug for which he was sentenced to 8 months imprisonment. On 4 February 2022 a decision was made to deport him on the basis that deportation was deemed conducive to the public good. Although the Secretary of State recognised that Mr Koka's prison sentence fell below the threshold for deportation (see below), she relied on the offending having caused serious harm. In response to the decision, Mr Koka raised an international protection claim as a refugee which on 27 February 2023, however, was withdrawn.

3.        On 21 October 2023 Mr Koka gave Notice of Appeal, on human rights grounds, against the decision to deport him.

4.        On 9 August 2024 Mr Koka's appeal was heard by First-tier Tribunal Degirmenci sitting at Hatton Cross. At paragraph 7 of her Determination and Reasons, the issues which she identified, under the heading, "Issues in dispute" were:

"(i) Whether the appellant [was] a 'foreign criminal' as defined by section 117D of the Nationality, Immigration and Asylum Act 2002.

(ii) If so, whether the effect of the appellant's deportation on his partner and/or child would be unduly harsh."

5.        Judge Degirmenci took a structured approach to the issues to be resolved having regard to sections 117C and 117D of the Nationality, Immigration and Asylum Act 2002. Section 117C provides:

"(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) 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.

(4) Exception 1 applies where-”

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) 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.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.

(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted."

6.        A 'foreign criminal' is defined in section 117D(2) as follows:

"(2) In this Part, "foreign criminal" means a person-”

(a) who is not a British citizen,

(b) who has been convicted in the United Kingdom of an offence, and

(c) who-”

(i) has been sentenced to a period of imprisonment of at least 12 months,

( ii) has been convicted of an offence that has caused serious harm, or

(iii) is a persistent offender."

Recognising the basis upon which Mr Koka had pleaded guilty i.e. that his involvement was the watering, on one occasion of cannabis plants, Judge Degirmenci found that the act of Mr Koka, "fell significantly short of one that can be said to have caused serious harm". By that finding Judge Degirmenci found as a matter of law that Mr Koka did not fall within the definition of foreign criminal.

7.        What Judge Degirmenci then did was simply to allow the appeal to the extent that Mr Koka did not meet the definition of "foreign criminal". That was consistent with the determination of the first issue to be determined by her, if indeed the issues stated to have been agreed by the parties had in fact been so agreed.

8.        Not content with the decision, by Notice dated 3 September 2024 the Secretary of State sought permission to appeal to this tribunal on the basis that Judge Degirmenci had failed to carry out any proportionality assessment; and erred in accepting Mr Koka's evidence supported by his partner as to the basis upon which Mr Koka was sentenced when that basis was not supported by the Judge's sentencing remarks against a background of historical deceptions in the manner in which Mr Koka had, on a number of occasions, attempted to enter the United Kingdom.

9.        At first instance, Judge Cox refused permission. He observed:

"The issues were agreed between the parties. The first and key issue identified was whether the appellant is a 'foreign criminal' as defined by section 117D of the 2002 Act. As such, once the judge had concluded that the Appellant is not a foreign criminal, and therefore Part 5 did not apply, the judge was not required to make an article 8 assessment.

 

In this context, it is noteworthy that the judge took into account that the prosecution had accepted the Appellant's account of his role in the cultivation of cannabis and the presenting officer did not challenge this aspect of the appellant's evidence (15).

 

It was also open to the judge to find that "it is highly unlikely that the appellant and his partner had rehearsed their answers ahead of the hearing, in relation to the basis of plea" (16)."

10.    By Notice dated 15 November 2024 the Secretary of State made a renewed application to the Upper Tribunal. In granting permission Upper Tribunal Judge Landes, found it arguable that Judge Degirmenci should have carried out an Article 8 proportionality assessment following the guidance in the case of Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC). That was notwithstanding the Secretary of State's failure to engage with the points raised in the refusal of permission to appeal by Judge Cox. Thus, the matter came before us.

11.    Noting that Judge Cox had refused permission on the basis that it appeared to him that the issues which Judge Degirmenci were to decide were essentially limited by what was set out at paragraph 7 of her Determination and Reasons, and noting further that in granting permission on the renewed application Judge Landes had observed that the Secretary of State had not addressed that point, we invited Mr Wain to take us to such evidence that he might have to demonstrate to us that the issues, apparently agreed by the parties before Judge Degirmenci, had not been so agreed. The best he was able to do was to point to paragraph C(i) of the written submissions prepared for the Secretary of State by Ms Simbi, Senior Presenting Officer, dated 3 January 2025 which read:

"The SSHD submits that, based on the Presenting Officer's hearing minute, no concession was made that Article 8 was irrelevant to the proportionality assessment. On the contrary, the Presenting Officer explicitly addressed the appellant's family life. Furthermore, as stated in the appellant's ASA dated 3 May 2024 (para 1.2), the appellant's representatives were aware that the deportation was based on its being conducive to the public good. If this position is agreed, the SSHD will not seek the audio recording; however, if disputed, the SSHD will request it".

12.    Mr Wain, quite properly in our view, did not invite us to revisit the question whether Mr Koka was in law a "foreign criminal" but did contend, in reliance upon the guidance in Binaku (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 34 (IAC) and Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC) that whatever was agreed as the issues to be resolved it was nevertheless incumbent upon Judge Degirmenci to carry out a full proportionality assessment. At one point he suggested, as his best point that the need to perform a full proportionality assessment was "Robinson obvious" though when it was pointed out to him that the case of Robinson [1997] EWCA Civ 3090 had no application in an appeal of this nature, he agreed, nevertheless maintaining his position that the judge ought to have carried out a full proportionality assessment.

13.    The guidance in Binaku is as follows:

"The procedural issue: appeals under section 11 of the TCEA 2007

 

(1)     The appellate regime established by the Nationality, Immigration and Asylum Act 2002, as amended, is concerned with outcomes comprising the determination of available grounds of appeal;

 

(2)     A party who has achieved the exact outcome(s) sought by way of an appeal to the First-tier Tribunal being allowed on all available grounds relied on (in respect of an individual) or because it has been dismissed on all grounds (in respect of the Secretary of State) cannot appeal to the Upper Tribunal under section 11(2) of the Tribunals, Courts and Enforcement Act 2007 against particular findings and/or reasons stated by the judge;

(3)     Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613 represents binding authority from the Court of Appeal to this effect.

 

The substantive issue: the relationship between Part 5A of the NIAA 2002 and the Immigration Rules

 

(4)     By virtue of section 117A(1) of the 2002 Act, a tribunal is bound to apply the provisions of primary legislation, as set out in sections 117B and 117C, when determining an appeal concerning Article 8.

 

(5)     In cases concerning the deportation of foreign criminals (as defined), it is clear from section 117A(2)(b) of the 2002 Act that the core legislative provisions are those set out in section 117C. It is now well-established that these provisions provide a structured approach to the application of Article 8 which will produce in all cases a final result compatible with protected rights.

 

(6)     It is the structured approach set out in section 117C of the 2002 Act which governs the task to be undertaken by the tribunal, not the provisions of the Rules.

 

(7)     A foreign criminal who has re-entered the United Kingdom in breach of an extant deportation order is subject to the same deportation regime as those who have yet to be removed or who have been removed and are seeking a revocation of a deportation order from abroad. The phrases "cases concerning the deportation of foreign criminals" in section 117A(2) and "a decision to deport a foreign criminal" in section 117C(7) are to be interpreted accordingly.

 

(8)     Paragraph 399D of the Rules has no relevance to the application of the statutory criteria set out in section 117C(4), (5) and (6);

 

(9)     It follows that the structured approach to be undertaken by a tribunal considering an Article 8 appeal in the context of deportation begins and ends with Part 5A of the 2002 Act. "

14.    The guidance in Wilson is equally very clear:

"In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State's view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights."

15.    We agree that it is important that judges remind themselves of the provision of section 117A of the 2002 Act which provides:

(1)     This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts-”

(a)     breaches a person's right to respect for private and family life under Article 8, and

(b)     as a result, would be unlawful under section 6 of the Human Rights Act 1998.

 

(2)     In considering the public interest question, the court or tribunal must (in particular) have regard-”

 

(a)     in all cases, to the considerations listed in section 117B, and

(b)     in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

 

(3)     In subsection (2), "the public interest question" means the question of whether an interference with a person's right to respect for private and family life is justified under Article 8(2).

16.    However, notwithstanding the observations made above, it is of note that the cases of Binaku and Wilson predate the change of approach to the determination of appeals in the First-tier Tribunal with the emphasis now heavily on determining the issues in dispute and for the judge to then focus only on those issues. For that reason, the Appellant is required to produce an Appeal Skeleton Argument, and the Respondent is required to condescend to it, with the Judge, as good practice, to determine, at the commencement of a hearing, whether there is scope for the narrowing of issues still further.

 

17.    Such an approach was specifically approved of by this Tribunal in the case of Lata [2023] UKUT 163 (IAC}, in a Presidential panel, with the headnote reading:

"1. The parties are under a duty to provide the First-tier Tribunal with relevant information as to the circumstances of the case, and this necessitates constructive engagement with the First-tier Tribunal to permit it to lawfully and properly exercise its role. The parties are therefore required to engage in the process of defining and narrowing the issues in dispute, being mindful of their obligations to the First-tier Tribunal.

 

2.          Upon the parties engaging in filing and serving a focused Appeal Skeleton Argument and review, a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.

 

3. The reformed appeal procedures are specifically designed to ensure that the parties identify the issues, and they are comprehensively addressed before the First-tier Tribunal, not that proceedings before the IAC are some form of rolling reconsideration by either party of its position.

4. It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon. The reformed appeal procedures that now operate in the First-tier Tribunal have been established to ensure that a judge is not required to trawl though the papers to identify what issues are to be addressed. The task of a judge is to deal with the issues that the parties have identified.

 

5. Whilst the Devaseelan guidelines establish the starting point in certain appeals, they do not require a judge to consider all issues that previously arose and to decide their relevance to the appeal before them. A duty falls upon the parties to identify their respective cases. Part of that process, in cases where there have been prior decisions, will be, where relevant, for the parties to identify those aspects of earlier decisions which are the starting point for the current appeal and why.

 

6. The application of anxious scrutiny is not an excuse for the failure of a party to identify those issues which are the principal controversial issues in the case.

 

7. Unless a point was one which was Robinson obvious, a judge's decision cannot be alleged to contain an error of law on the basis that a judge failed to take account of a point that was never raised for their consideration as an issue in an appeal. Such an approach would undermine the principles clearly laid out in the Procedure Rules. [our emphasis]

 

8. A party that fails to identify an issue before the First-tier Tribunal is unlikely to have a good ground of appeal before the Upper Tribunal."

18.    The first observation that we make with respect to the submissions made by Mr Wain is that the reliance on the submission of Ms Simba, set out above is inadequate. If the Secretary of State intended to submit that the judge was required to make findings beyond the identified issues then it was firstly incumbent upon her to say so in express terms, all the more so because she had been alerted to the point by both Judge Cox and Judge Landes.

19.    Secondly, the issues as agreed did not require the Judge to ignore the Article 8 proportionality balancing exercise but rather assumed that, if Mr Koka were not found to be a foreign criminal, then his deportation would not be proportionate. As we pointed out during the hearing, it was open to the Secretary of State to add a third issue to the effect that if Mr Koka were not found to be a foreign criminal, then the Judge was to consider whether Mr Koka's removal as a non-foreign criminal (albeit a person with a criminal record) would be proportionate. The issues, as agreed, did not however move on that that step and were implicitly a concession that if Mr Koka were not a foreign criminal (and therefore Section 117C did not apply) then the appeal should be allowed.

20.    We agree that the Judge could and should have made matters clearer. Good practice would have been to clarify with the parties whether in the light of the agreed issues it was understood that she was not required to go on and set out the factors for and against in her consideration of what was proportionate. The Judge should then have stated that to have been done in the Decision and Reasons, but we do not find the absence of that clarification amounts to an error of law. The Judge determined the issues she was asked to determine. For the avoidance of doubt, we do not suggest that anything more than a few lines is required; the Judge is not required to determine whether other concessions are implied; that would clearly defeat the purpose of narrowing issues.

21.    Equally parties should be mindful of what is implicit in what they agree the issues to be. As above the Secretary of State could have invited the Judge to consider a third question, i.e. (iii) If not, whether the effect of [Mr Koka's] deportation would be proportionate to the legitimate aim of immigration control, but that was not a question the judge was asked to address independently of (i) and (ii) set out at paragraph 7 of her Determination and Reasons.

22.    There is a further point of merit taken by Mr Bazini in response to this appeal. As he submitted and we accept, the Reasons for Refusal letter was framed against the Secretary of State's contention that it was because Mr Koka was a foreign criminal that he should be removed. No other matters of significance were put in issue. Had the judge gone on to consider matters not put in issue by the Secretary of State, criticism of the Judge may well have been justified.

23.    We take this opportunity to remind parties that they and Judges alike are now encouraged to narrow the issues as best they can; that is plain from the guidance in the case of Lata, if not the Procedure Rules themselves. This not only results in the need for shorter decisions by judges, which is now also encouraged but is plainly in the interests of justice and efficiency.

Notice of Decision

The appeal of the Secretary of State to the Upper Tribunal is dismissed on all grounds. The decision of First tier Tribunal Judge Degirmenci does not contain an error of law. The decision of the First-tier Tribunal is upheld with the consequence that Mr Koka's appeal remains allowed.

D Zucker

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

21 February 2025