Sharmarke Yussuf v The Secretary of State for the Home Department

For a foreign criminal within section 32 of the UK Borders Act 2007, section 32(4) impliedly amends section 3(5)(a) of the Immigration Act 1971. Parliament, rather than the Secretary of State, has determined that deportation is conducive to the public good. The person is therefore liable to deportation without a separate executive deeming decision.

Under the former appeal provisions in the Nationality, Immigration and Asylum Act 2002, the Tribunal could allow an appeal because a statutory discretion should have been exercised differently. The wording did not justify treating discretions conferred by statute less favourably than those conferred by immigration rules.

The appellant was a Somali refugee with indefinite leave to remain. Following convictions, including attempted wounding for which he received two years’ imprisonment, the Secretary of State proposed to revoke his indefinite leave under section 76(1) of the Nationality, Immigration and Asylum Act 2002.

The First-tier Tribunal dismissed his appeal. A Deputy Upper Tribunal Judge dismissed a further appeal, holding both that the appellant was liable to deportation and that the First-tier Tribunal could not substitute its view of the Secretary of State’s statutory discretion. The Court of Appeal allowed an appeal by consent and remitted the matter to a differently constituted Upper Tribunal.

The issues were whether the appellant was liable to deportation despite no express executive deeming under section 3(5)(a) of the Immigration Act 1971, and whether the Tribunal could exercise the statutory discretion differently.

1. The First-tier Tribunal’s decision was set aside. The Secretary of State had power under section 76(1) of the Nationality, Immigration and Asylum Act 2002 to revoke the appellant’s indefinite leave. The case was retained in the Upper Tribunal for re-making after updated evidence had been obtained.

2. Section 32(4) of the UK Borders Act 2007, read for the purposes of section 3(5)(a) of the Immigration Act 1971, impliedly removes the Secretary of State’s function of deciding whether deportation of a foreign criminal is conducive to the public good. It substitutes an automatic statutory deeming. A foreign criminal is consequently liable to deportation without a separate declaration by the Secretary of State.

3. This construction avoided the incoherent result that a person whom Parliament required the Secretary of State to deport could nevertheless not be liable to deportation. Section 33(7) also preserves the operation of section 32(4) despite Exceptions 1 and 4.

4. The Tribunal treated MK (deportation – foreign criminal – public interest) Gambia [2010] UKUT 281 (IAC) as correctly stating that Parliament had replaced executive assessment of the public interest in automatic-deportation cases. The Supreme Court judgments in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 put the construction beyond doubt. Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 00250 (IAC) was incorrectly decided insofar as it required a separate executive deeming decision.

5. The former sections 84(1)(f) and 86(3)(b) of the 2002 Act did not prevent the Tribunal from allowing an appeal on the basis that a statutory discretion should have been exercised differently. Section 86(3)(b) was general in terms. Clear wording would have been required to restrict that appellate power to discretions under immigration rules.

• Court of Appeal: on 14 February 2017, allowed the appeal by consent to the extent of remitting it to a differently constituted Upper Tribunal. The parties agreed that the earlier Upper Tribunal decision was flawed in its treatment of Ali (section 6 – liable to deportation) Pakistan [2011] UKUT 00250 (IAC) and of the respondent’s discretion under section 76 of the Nationality, Immigration and Asylum Act 2002.

• Upper Tribunal: set aside the First-tier Tribunal’s decision for error of law and directed that the appeal be re-made in the Upper Tribunal.

• First-tier Tribunal: dismissed the appeal against the revocation of indefinite leave, holding that the appellant fell within section 76 and that it could not review the statutory discretion.