Victory in the Court of Appeal – 04.09.2020
These two appeals have been listed together because they raise similar issues. The Appellants are non-British nationals – both, though this is coincidental, from Iraq – who came to this country many years ago and have lived here ever since. Both are in settled relationships with women of British nationality and have young children who are likewise British citizens. Both committed criminal offences for which they were sentenced to terms of imprisonment of sixteen and twelve months respectively. Those sentences attracted the automatic deportation provisions of section 32 of the UK Borders Act 2007. In both cases the Secretary of State made a deportation order but the Appellant appealed to the First-tier Tribunal (“the FTT”). The appeals are subject to the terms of Part 5A of the Nationality, Immigration and Asylum Act 2002 (in particular section 117C), and Part 13 of the Immigration Rules, of which I give more details below.
In both cases the appeals were successful, but the Secretary of State in her turn appealed to the Upper Tribunal (“the UT”). Both appeals were allowed and the decisions directed to be re-made by the UT at a further hearing. That hearing took place in RA’s case on 13 February 2019 before Lane J (the President of the Immigration and Asylum Chamber), UTJ Gill and UTJ Coker. The hearing in HA’s case was two days later, before Lane J and UTJ Gill. The decisions in both cases were likewise promulgated only a few days apart – RA on 4 March and HA on 8 March. The two appeals, together with two others (one of which was MS (Philippines)  UKUT 122 (IAC)), were listed on successive days in order for the UT, in constitutions chaired by the President, to give authoritative guidance on various issues about section 117C arising out of the then recent decision of the Supreme Court in KO (Nigeria) v Secretary of State for the Home Department  UKSC 53,  1 WLR 5273. The decision in RA was the principal vehicle for that guidance, though some points of general application are dealt with in the other decisions.