The Secretary of State for the Home Department v OLO & Ors

A person whose sentence reaches 12 months only because consecutive sentences are aggregated is not a foreign criminal for the deportation provisions of the Immigration Rules. The expression should be construed consistently with Nationality, Immigration and Asylum Act 2002, section 117D(4)(b).

Accordingly, paragraphs 398 and 399 of the Immigration Rules do not apply to such a person, and the Secretary of State is not required to address them in a deportation decision. This does not remove the statutory public-interest considerations applicable to Article 8 claims by persons who are not foreign criminals.

The first appellant, a Nigerian national, had been convicted of two false-document offences. Her original 20-month sentence was reduced on appeal to two consecutive six-month sentences. The Secretary of State decided to deport her and her dependent family members under section 3(5)(a) of the Immigration Act 1971.

The First-tier Tribunal held that the decision was not in accordance with the law because it had not considered paragraphs 398 and 399 of the Immigration Rules, and remitted the matter for fresh decisions. The Secretary of State appealed. The central issue was whether consecutive sentences totalling 12 months made the first appellant a foreign criminal to whom those Rules applied.

1. Appeal allowed; First-tier Tribunal decision set aside and appeal remitted. The First-tier Tribunal erred in holding that paragraphs 398 and 399 of the Immigration Rules applied and that their omission made the deportation decision unlawful.

2. Section 117D(4)(b) of the Nationality, Immigration and Asylum Act 2002 excludes a person sentenced to a specified length of imprisonment only because consecutive sentences aggregate to that length. The first appellant's two consecutive six-month sentences therefore did not make her a foreign criminal under section 117C: [20].

3. The Immigration Rules contained no independent definition of foreign criminal. Paragraph 6, which adopted the meaning of a period of imprisonment in section 38(2) of the UK Borders Act 2007, did not resolve that question. The Explanatory Notes to the Immigration Act 2014 supported construing the expression in the Rules consistently with the statutory definition: [22]-[24].

4. Since paragraph A398 confines the relevant deportation Rules to foreign criminals, paragraphs 398 and 399 had no application to the first appellant. The Secretary of State was consequently not required to consider them: [25]-[27].

5. The appellant nevertheless remained subject to the Article 8 public-interest considerations in sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002. As the First-tier Tribunal had made no factual findings, the Article 8 appeal was remitted for a full rehearing before a differently constituted panel or a single judge: [21], [28].

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State's appeal, set aside the First-tier Tribunal decision, and remitted the Article 8 appeal for a fresh hearing.
• First-tier Tribunal: Held that the deportation decisions were not in accordance with the law because paragraphs 398 and 399 of the Immigration Rules had not been considered, and remitted the matters to the Secretary of State for fresh decisions.