The Upper Tribunal allows deportation appeal and gave guidance on appeal rights and Part 5A of the 2002 Act

The Upper Tribunal (Mr Justice Lane, President, and Judge Norton-Taylor) promulgates its decision in Binaku (s.11 TCEA; s.117C NIAA; para. 399D) [2021] UKUT 34 (IAC).

Mr Shaban Binaku, a citizen of Kosovo, is a foreign criminal who entered the United Kingdom in breach of a deportation order and made a human rights claim. He had previously left the United Kingdom following his sentence of imprisonment for three years and was subject of a deportation order. The Secretary of State refused his human rights claim and declined to revoke the deportation order. The First Tier Tribunal dismissed his appeal from the Secretary of State's decision and he then appeal to the Upper Tribunal from the First Tier Tribunal's decision.

The First Tier Tribunal made three key findings when dismissing Mr Binaku's appeal. First, it would be unduly harsh on Mr Binaku's British citizen children to be separated from him. Second, it would be unduly harsh for his children to accompany him to Kosovo. Third, there were no very exceptional circumstances. In other words, the First Tier Tribunal found that Exception 2, as stipulated in section 117C(5) of the Nationality, Immigration and Asylum Act 2002 applied to this case but the test in Paragraph 399D of the Immigration Rules was not met.

Mr Binaku's appeal to the Upper Tribunal raised both procedural issues and substantive issues. On the procedural issues, the Upper Tribunal held:

(1)   The appellate regime established by the Nationality, Immigration and Asylum Act 2002, as amended, is concerned with outcomes comprising the determination of available grounds of appeal;

(2)   A party who has achieved the exact outcome(s) sought by way of an appeal to the First-tier Tribunal being allowed on all available grounds relied on (in respect of an individual) or because it has been dismissed on all grounds (in respect of the Secretary of State) cannot appeal to the Upper Tribunal under section 11(2) of the Tribunals, Courts and Enforcement Act 2007 against particular findings and/or reasons stated by the judge;

(3)   Devani [2020] EWCA Civ 612; [2020] 1 WLR 2613 represents binding authority from the Court of Appeal to this effect.

On the substantive issues, the Upper Tribunal held:

(4)   By virtue of section 117A(1) of the 2002 Act, a tribunal is bound to apply the provisions of primary legislation, as set out in sections 117B and 117C, when determining an appeal concerning Article 8.

(5)   In cases concerning the deportation of foreign criminals (as defined), it is clear from section 117A(2)(b) of the 2002 Act that the core legislative provisions are those set out in section 117C. It is now well-established that these provisions provide a structured approach to the application of Article 8 which will produce in all cases a final result compatible with protected rights.

(6)   It is the structured approach set out in section 117C of the 2002 Act which governs the task to be undertaken by the tribunal, not the provisions of the Rules.

(7)   A foreign criminal who has re-entered the United Kingdom in breach of an extant deportation order is subject to the same deportation regime as those who have yet to be removed or who have been removed and are seeking a revocation of a deportation order from abroad. The phrases "cases concerning the deportation of foreign criminals" in section 117A(2) and "a decision to deport a foreign criminal" in section 117C(7) are to be interpreted accordingly.

(8)   Paragraph 399D of the Rules has no relevance to the application of the statutory criteria set out in section 117C(4), (5) and (6);

(9)   It follows that the structured approach to be undertaken by a tribunal considering an Article 8 appeal in the context of deportation begins and ends with Part 5A of the 2002 Act.

Applying these principles, the Upper Tribunal held that the First Tier Tribunal's decision to dismiss Mr Binaku's appeal was wrong in law. The Upper Tribunal set aside that decision and substituted a fresh decision allowing Mr Binkau's underlying appeal against the Secretary of State's decision.

Zane Malik appeared for the successful Appellant, Mr Binaku.

The Upper Tribunal's judgment is available here.