Secretary of State for the Home Department v Michael Evans Clarke

Section 117C of the Nationality, Immigration and Asylum Act 2002 applies only where the case concerns the deportation of a foreign criminal. Section 117A(2) expressly separates the public-interest considerations applicable in all Article 8 cases from the additional considerations in section 117C, which apply in deportation cases.

A person may satisfy the definition of a foreign criminal in section 117D(2), but that does not make section 117C applicable to an administrative-removal decision. A tribunal must determine the appeal by reference to the decision actually made and the statutory regime applicable to it.

The Secretary of State appealed against a First-tier Tribunal decision allowing Mr Clarke's Article 8 appeal against a decision to remove him under section 10 of the Immigration and Asylum Act 1999.

The First-tier Tribunal found that Mr Clarke did not meet the Immigration Rules because of his offending, but that he had genuine and subsisting parental relationships with his British children. It applied section 117B(6) of the Nationality, Immigration and Asylum Act 2002 and allowed the appeal.

The Secretary of State's sole ground was that Mr Clarke was a foreign criminal under section 117D(2), so that the Tribunal should have applied section 117C and its more stringent deportation provisions. The central issue was whether section 117C applies to administrative removal rather than deportation.

1. Appeal dismissed. The First-tier Tribunal made no error of law and its decision allowing the Article 8 appeal stood.

2. Section 117C of the Nationality, Immigration and Asylum Act 2002 applies only in cases concerning deportation. Although its heading refers to cases involving foreign criminals, the operative provisions consistently concern deportation. More importantly, section 117A(2) directs the tribunal to consider section 117B in all cases, but section 117C only in cases concerning the deportation of foreign criminals ([36]-[38]).

3. It was immaterial whether Mr Clarke satisfied the separate definition of a foreign criminal in section 117D(2). The Secretary of State had made an administrative-removal decision under section 10 of the Immigration and Asylum Act 1999, not a deportation decision. Deportation and administrative removal are distinct, and the possibility that the Secretary of State could instead have pursued deportation did not alter the character of the decision under appeal ([39]-[42]).

4. The First-tier Tribunal therefore correctly assessed the public interest under section 117B alone. There was no challenge to its findings that Mr Clarke had genuine and subsisting parental relationships with qualifying children and that it would not be reasonable to expect them to leave the United Kingdom. Its reliance on section 117B(6) was consequently open to it ([30], [41]-[44]).

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State's appeal was dismissed. The First-tier Tribunal's decision allowing the Article 8 appeal was not set aside.
• First-tier Tribunal: Allowed Mr Clarke's appeal against the administrative-removal decision under Article 8.