the times | Thursday May 26 2022 55
Register
A person’s status as a “foreign
criminal” was to be determined on the
date when the Secretary of State for
the Home Department took the
decision to make a deportation order.
The Court of Appeal so stated
when dismissing the appeal of Sajid
Zulfiqar against a decision of the
Upper Tribunal (Immigration and
Asylum Chamber) (Upper Tribunal
Judges O’Callaghan and Mandalia)
([2020] UKUT 312 (IAC)), which dis-
missed his appeal against a ruling by
the First-tier Tribunal (Judge Feeney)
to uphold the Secretary of State for
the Home Department’s decision to
deport him.
Richard Drabble QC, Ranjiv
Khubber and Shuyeb Muquit for the
applicant; Rory Dunlop QC and Ra-
chel Sullivan for the secretary of
state.
Lord Justice Underhill said that
the applicant had been born in the
United Kingdom and had from birth
had both British and Pakistani nation-
ality. He had lived in the UK all his life
and had only visited Pakistan once. In
2005 he was convicted of murder and
sentenced to life imprisonment with a
minimum term of 15 years.
Windsor Castle
25th May, 2022
The Rt. Hon. Boris Johnson MP
(Prime Minister and First Lord of
the Treasury) had an audience of
The Queen via telephone this
evening.
The Duke of Cambridge, on
behalf of The Queen, and The
Duchess of Cambridge gave an
Afternoon Party in the garden of
Buckingham Palace.
Princess Beatrice, Mrs Edoardo
Mapelli Mozzi, The Earl and
Countess of Wessex and The Duke
and Duchess of Gloucester were
present.
Her Majesty’s Body Guard of the
Honourable Corps of Gentlemen at
Arms and The Queen’s Body Guard
of the Yeomen of the Guard were on
duty.
The Band of the Welsh Guards
and the British Army Band
Tidworth played selections of music
during the afternoon.
Clarence House
25th May, 2022
The Prince of Wales was received
this afternoon by The President of
Romania at Cotroceni Palace,
Bucharest, Romania.
His Royal Highness afterwards
called upon Mr Nicolae Ciuca
(Prime Minister of Romania) at
Victoria Palace.
The Prince of Wales called upon
Her Majesty Margareta, Custodian
of the Crown of Romania at
Elisabeta Palace.
His Royal Highness later met
Ukrainian refugee families and
organisations overseeing a free
supermarket, Romexpo, Bucharest.St James’s Palace
25th May, 2022
The Earl of Wessex, Chairman of
the Board of Trustees, The Duke of
Edinburgh’s International Award
Foundation, this morning attended
a Meeting via video link.
His Royal Highness this evening
attended the Imperial Society of
Knights Bachelor Dinner at
Drapers’ Hall, Throgmorton
Avenue, London EC2.
The Countess of Wessex, Global
Ambassador, International Agency
for the Prevention of Blindness, this
evening attended a Reception at
Church House, Dean’s Yard, London
SW1.Kensington Palace
25th May, 2022
The Duke of Gloucester, Royal
Patron, this morning viewed ‘The
World of Stonehenge’ exhibition at
the British Museum, Great Russell
Street, London WC1.St James’s Palace
25th May, 2022
The Duke of Kent this morning
attended a Service to
Commemorate the Sixtieth
Anniversary of the Consecration of
Coventry Cathedral at Priory Street,
Coventry, and was received by Her
Majesty’s Lord-Lieutenant of West
Midlands (Mr John Crabtree).St James’s Palace
25th May, 2022
Princess Alexandra, President,
Royal Humane Society, today
attended the Annual General Court
at Haberdashers’ Hall, 18 West
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Status as a ‘foreign criminal’ determined
on date when deportation order is made
In August 2011 he applied to re-
nounce his British citizenship in order
to qualify for consideration for a
transfer to Pakistan to serve the re-
mainder of his sentence there: his
father had returned to live in Pakistan
and was ill, and he wanted to be near
him. That application was approved
and he ceased to be a British citizen
with effect from October 21, 2011. He
then applied for a transfer, but the ap-
plication was refused.
In 2013, while in prison, the appli-
cant married a British citizen. On Oc-
tober 12, 2016, the secretary of state is-
sued the applicant with a deportation
notice in reliance on the “automatic
deportation” provisions applying to
foreign criminals under section 32(5)
of the UK Borders Act 2007. She sub-
sequently withdrew that notice on the
basis that he had been a British citizen
at the time of his conviction; but on
January 16, 2018, she served a fresh
notice on the basis of the general
power of deportation under section
3(5)(a) of the Immigration Act 1971.
The applicant no longer wished to
return to Pakistan: he wished on his
release to be able to continue to live in
the UK with his wife. He accordingly
claimed that his deportation would be
incompatible with his right to respect
for family life, under article 8 of the
European Convention on Human
Rights, and accordingly unlawful by
virtue of section 6 of the Human
Rights Act 1998. That claim was re-
fused. The applicant was released
from detention on September 18,2020, and had remained on immigra-
tion bail since then.
The issue of general importance
was whether the applicant’s case was
covered by section 117C of the Nation-
ality, Immigration and Asylum Act
2002, which prescribed the approach
to be taken in striking the article 8 bal-
ance in the case of decisions whether
to deport foreign criminals. That
depended on the date at which the
question whether he was a British citi-
zen had to be answered.
The secretary of state had original-
ly taken the view that for the purpose
of the UK Borders Act 2007 the rele-
vant date was the date of the appli-
cant’s conviction, at which point he
had still been a British citizen; but it
was her case, at least in the Upper Tri-
bunal, that for the purpose of section
117C the relevant date was the date of
the deportation decision, by which
time he had renounced his citizen-
ship.
Although the functions of section
32 of the 2007 Act and section 117C of
the 2002 Act were different, they did
not require or imply any difference in
the approach to the date of determi-
nation of foreign criminal status. It
would be remarkable for a different
approach to be required where the
statutory provisions in question clear-
ly fell to be interpreted as part of a
single scheme.
The natural reading of both groups
of provisions was that “foreign crimi-
nal” status was to be determined at the
date of the secretary of state’s decisionto make a deportation order. The ef-
fect of section 32(5) of the 2007 Act
was to require her to make such an or-
der (albeit that she had a discretion as
to the time at which it should be made- see section 34(1)); and section 117A(1)
of the 2002 Act was concerned with a
court or tribunal’s assessment of the
lawfulness of that decision (being “a
decision made under the Immigration
Acts”).
It followed, absent any clear indica-
tion to the contrary, that the defini-
tions adopted for the purpose of those
provisions fell to be applied as at the
date of the decision the lawfulness of
which was in question.
Accordingly, the Upper Tribunal
had been right, albeit not quite for the
reasons it gave, to hold that the appli-
cant was a foreign criminal for the
purpose of Part 5A of the 2002 Act,
and thus that the First-tier Tribunal
should have applied section 117C
when considering “the public interest
question”.
It did not follow that the fact that
the applicant was a British citizen at
the date of his conviction and sen-
tence — and, perhaps more impor-
tantly, at the date that he committed
the offence — was immaterial to the
outcome of the appeal: it would be a
material factor in conducting the pro-
portionality balance which remained
necessary under section 117C(6).
Lord Justice Arnold and Lord Jus-
tice Snowden agreed.
Solicitors: Turpin Miller LLP, Ox-
ford; Treasury Solicitor.
Court of Appeal
Published May 23, 2022
Zulfiqar v Secretary of State for
the Home Department
Before Lord Justice Underhill, Lord Justice
Arnold and Lord Justice Snowden
[2022] EWCA Civ 492
Judgment April 14, 2022
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