Selami Cokaj v The Secretary of State for the Home Department

Paragraph A398 governs the deportation rules which follow it. Its expression foreign criminal has the meaning given by section 117D of the Nationality, Immigration and Asylum Act 2002. A person convicted only outside the United Kingdom is therefore not a foreign criminal for paragraphs A398–399D.

Where deportation rests solely on an overseas conviction, the Article 8 claim falls outside those rules. The entry-clearance suitability rules may nevertheless guide the assessment of the public interest. The reliability, seriousness and circumstances of the foreign conviction require careful evaluation.

An interlocutory order will rarely be revisited without a material change of circumstances or prior misleading of the Tribunal. Finality and proper appellate procedure carry substantial weight.

The appellant, an Albanian national convicted of murder in Albania, appealed against a decision to deport him. The First-tier Tribunal dismissed his protection and Article 8 claims. Upper Tribunal Judge Pitt later upheld the dismissal of the protection claim but set aside the Article 8 decision for remaking.

In the remaking proceedings, the appellant contended that his Albanian conviction was unsafe because he had been tortured, forced to plead guilty and denied representation. He also relied on his family life with his wife and six British citizen children. The Tribunal refused to admit an exceptionally late supplementary expert report and declined to revisit that interlocutory decision.

The central issues were whether an overseas conviction made the appellant a foreign criminal under the Immigration Rules, what public interest attached to the conviction, and whether Article 8 outweighed deportation.

1. The human rights appeal was dismissed. The Tribunal remade the Article 8 decision and held that deportation was proportionate.

2. Paragraph A398 governs paragraphs 399–399D of the Immigration Rules. Since it uses the same expression as section 117D of the Nationality, Immigration and Asylum Act 2002, foreign criminal bears the statutory meaning. A non-British citizen convicted only abroad cannot satisfy section 117D(2)(b), which requires conviction in the United Kingdom. The Tribunal approved OLO and Others (para 398 – “foreign criminal”) [2016] UKUT 00056 and did not follow Andell (foreign criminal - para 398) [2018] UKUT 198.

3. The appellant's Article 8 claim therefore fell outside paragraphs A398–399D and section 117C. The suitability provisions for entry clearance in Appendix FM were an appropriate guide to the public interest. Overseas convictions require care because their reliability, criminality and sentencing context may differ from United Kingdom proceedings. On the findings of the Albanian court, however, the murder conviction and sentence were unobjectionable.

4. The appellant had not shown a real risk or reasonable likelihood that the murder conviction was unsafe. His belated allegations were inconsistent with the contemporaneous court record, his earlier proceedings and his persistent dishonesty. His evidence and the expert reports did not displace the strong public interest arising from a conviction for murder and serious abuse of immigration controls.

5. The Tribunal adopted a balance-sheet approach. The children’s best interests were a primary consideration, but the evidence did not establish unjustifiably harsh or unduly harsh consequences for them, the appellant’s wife or his adult children. The appellant’s adult son could assist the family. The proportionality balance was firmly in the respondent’s favour.

6. The Tribunal also refused to revisit its exclusion of a late supplementary expert report. Absent a material change of circumstances or prior misleading of the Tribunal, finality and the proper use of appellate procedure will very rarely yield to variation or revocation of an interlocutory order.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal remade the Article 8 decision after Upper Tribunal Judge Pitt had set aside that part of the First-tier Tribunal decision. It dismissed the appellant’s human rights appeal.
• Upper Tribunal (Immigration and Asylum Chamber): Upper Tribunal Judge Pitt upheld the dismissal of the protection claim and the part of the human rights claim based on an alleged risk of harm in Albania. She allowed the appeal only as to Article 8, set aside that part of the First-tier Tribunal decision and directed remaking in the Upper Tribunal.
• First-tier Tribunal: First-tier Tribunal Judge Law dismissed the appeal against the refusal of the appellant’s protection and human rights claims.