Daniel Andell v Secretary of State for the Home Department

Paragraph 398 of the Immigration Rules applies to a person facing deportation on conducive-to-the-public-good grounds under the Immigration Act 1971, even if that person is not a statutory foreign criminal under the Nationality, Immigration and Asylum Act 2002 or the UK Borders Act 2007.

The statutory definitions are terms of art. In the Rules, the words identify foreign offenders whose Article 8 claims are assessed under the deportation provisions. A tribunal must consider the Secretary of State’s assessment, including foreign convictions and offending behaviour. It must decide, on the evidence, whether serious harm or persistent offending is established where that issue arises.

The appellant, a citizen of Trinidad and Tobago, appealed the refusal of his protection and human-rights claim following a decision to deport him on conducive-to-the-public-good grounds. The First-tier Tribunal dismissed his appeal but found that he was not a foreign criminal for the purposes of Part 5A of the Nationality, Immigration and Asylum Act 2002.

Both parties appealed. The appellant challenged the assessment of protection evidence and raised an alleged procedural defect in the human-rights decision. The Secretary of State challenged the First-tier Tribunal’s treatment of persistent offending, serious harm and the statutory meaning of “foreign criminal”. The central issue was whether paragraph 398 of the Immigration Rules governed an Article 8 appeal where deportation had been initiated under the Immigration Act 1971 but the person did not meet a statutory foreign-criminal definition.

1. Appeals allowed; First-tier Tribunal decision set aside and appeal remitted. The First-tier Tribunal materially erred by failing properly to consider medical, expert and country evidence relevant to the protection claim. No findings were preserved.

2. The Secretary of State’s power to decide that deportation is conducive to the public good under section 3(5)(a) of the Immigration Act 1971 is not conditional on the person being a statutory foreign criminal. The definitions in the UK Borders Act 2007 and Part 5A of the Nationality, Immigration and Asylum Act 2002 have different statutory functions. Paragraph 398 of the Immigration Rules also covers persons whom the Secretary of State considers liable to deportation because of criminality or offending behaviour.

3. In the human-rights appeal, the tribunal must assess proportionality. It may consider criticisms of the Secretary of State’s decision, foreign convictions, offending behaviour and alleged procedural defects. It is open to the tribunal to decide on the evidence whether the person is a persistent offender or has caused serious harm for the statutory Article 8 framework.

4. The First-tier Tribunal considered only the United Kingdom conviction when deciding persistent offending. It failed to analyse the Trinidad and Tobago convictions and did not determine serious harm. Those omissions, and its consequent treatment of the appeal under section 117B rather than reaching a lawful decision on the applicable deportation framework, were material errors.

5. The Tribunal also stated that, following Charles (human rights appeal: scope) [2018] UKUT 00089 (IAC), it could not allow an appeal merely because the Secretary of State’s decision was not in accordance with the law. Such criticism could instead be advanced in the Article 8 proportionality assessment. The case required primary fact-finding and was remitted under section 12(2) of the Tribunals, Courts and Enforcement Act 2007.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed both parties’ appeals on error of law, set aside the First-tier Tribunal’s decision in its entirety, and remitted the protection and human-rights appeal for a rehearing with no findings preserved.

• First-tier Tribunal: Dismissed the appellant’s protection and human-rights appeal in a decision promulgated on 16 January 2017. It found that he was not a foreign criminal for the Part 5A framework.