C4/2004/2087
Neutral Citation Number: [2005] EWCA Civ 832
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Thursday, 23rd June 2005
B E F O R E:
LORD JUSTICE BUXTON
LORD JUSTICE SEDLEY
MR JUSTICE RIMER
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HACI ALI MERT
Applicant/Appellant
-v-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent/Respondent
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MR RABINDER SINGH QC and MR RANJIV KHUBBER (instructed by The Joint Council for the Welfare of Immigrants, 115 Old Street, London EC1V 9RT) appeared on behalf of the Appellant
MISS ELEANOR GREY(instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Respondent
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J U D G M E N
1. LORD JUSTICE BUXTON: This is an appeal brought by Mr Haci Mert, who is a citizen of Turkey, against a decision of the Immigration Appeal Tribunal. The background is somewhat convoluted and the shape of these proceedings possibly even more so. It is necessary therefore to explain why we find ourselves considering the matter in the form that it takes.
2. Mr Mert is a gentleman now I think 38 years old. He has been resident for some 14 years. It appears that he claimed asylum in this country upon arrival in 1989. Regrettably, however, no record seems to exist of that claim, although it appears to be accepted that it was indeed made. Nor is it clear what is his current immigration status. It does however seem to be the case, as the adjudicator accepted, that he would have been entitled some years ago to make an application for citizenship.
3. However, during the time that he has been here, his wife, who is also a citizen of the Republic of Turkey, joined him in this country and they married here. They now have four children. In terms that I shall return to shortly, the adjudicator found that the family life in this country is a real and subsisting one, and in addition that Mr Mert has an extended family in this country.
4. Very regrettably, however, Mr Mert committed an extremely serious criminal offence, in the shape of being responsible for the supply of controlled drugs, and was sentenced in June 1998 to a period of 9 years' imprisonment by the Snaresbrook Crown Court. The sentence reflects the seriousness of his offence. The court also made a recommendation that Mr Mert should be deported at the end of his sentence. In accordance with the normal provisions for early release, Mr Mert served 4½ years of his 9-year sentence of imprisonment. The Secretary of State proposed to implement the recommendation for deportation. These proceedings emanate from that recommendation.
5. Mr Mert appealed, as was his right, to an immigration adjudicator against that decision to deport him. It seems to have been clear in the estimation of those who represented Mr Mert on that occasion, and who is one of the counsel representing him before us, that the appeal was brought under section 65 of the Immigration and Asylum Act 1999, on the ground that a deportation would infringe (as it was then claimed) Articles 2 and 3 and Article 8 of the European Convention on Human Rights.
6. The first difficulty in this case on what basis the immigration adjudicator thought he was proceeding. In an argument impressively, if I may venture to say so, sustained in the face of an unsympathetic tribunal, Miss Eleanor Grey has demonstrated that there is material in the adjudicator's determination to indicate that, whilst he appreciated that he was hearing an appeal under section 65 of the 1999 Act, he also considered that he was seised of a second appeal arising in respect of the original decision to make the deportation order, as addressed in section 63 of the Act.
7. The Secretary of State's first ground of criticism, to which I shall have to return, is that that misapprehension on the adjudicator's part distorted his appreciation of his proper role under both heads of the jurisdiction that he thought that he was applying, in that it caused him not to appreciate the weight that he should properly give in a section 65 appeal to the policy of the Secretary of State with regard to the prevention of crime: a policy that was relied on by the Secretary of State in the refusal letter that he sent to Mr Mert's advisers, and which in any event is notorious to anyone working in this field. I shall have to come back to the implications of that error, as Miss Grey contended it to be, on the part of the adjudicator.
8. In his determination the adjudicator first referred to a decision of the then Master of the Rolls in Secretary of State for the Home Department v Mahmood; found that the appellant and his family have a valid and subsisting marriage and family life, saying in paragraph 21 "All of the family attended the court hearing and evidence was produced to demonstrate that they had visited the appellant whilst he had been imprisoned"; referred to the connections of other members of Mr Mert's family with the United Kingdom (all of his brothers apparently living at least outside Turkey); and then set out the grounds for his determination.
9. Because the focus of this appeal as it has developed has turned out to be a criticism that the adjudicator erred in law, as the complaint must be, in the assessment that he made, it is only fair to him to set that out in full:
"29. The appellant's evidence was confirmed by his wife who also gave oral evidence. She was able to confirm that all the children had been born in the United Kingdom. It is self-evident that the children are at a formative time of their lives. They are all attending full-time education and are developing rapidly.
30. There would inevitably be severe disruption to their lives if they moved to Turkey.
31. It would not seem to be appropriate to demand that the appellant return to Turkey and apply to return under the immigration rules. Despite the fact that he may well not be eligible under the rules, this is not a case where an issue in the case is an attempt to circumvent the immigration rules. This is a matter that should be dealt with in a proportional way.
32. The appellant had a family life before his prison sentence which continued during the time of his sentence and has been re-established in full upon his release. It is not some 16 months since his release from prison and he has a new child with his wife. The appellant was able to produce the full birth certificates to confirm his relationship with his children.
33. The family are not separated and even during the separation that is mentioned in earlier matters they still lived together.
34. I fully appreciate why the deportation order was made but note that there has been a significant time since that event. To remove the appellant would seem to be disproportionate at this stage. The effect would be greater on his family than would seem appropriate. It would be disproportionate to ask children at their ages to leave the country where they were born to go to a foreign country to continue their family life with their father. I appreciate the Secretary of State has a duty to maintain law and order to effective immigration control and that this appellant has committed a serious offence. However taking all the factors into consideration removal would not be proportionate.
35. I have considered all the documents and representations before me even if I have not made specific reference to them.
36. Having considered the evidence as a whole I considered that the appellant has shown that he is right [sic] under article eight would be breached. I also consider that [his] removal would be disproportionate even taking into account all the relevant factors. The appellant has shown [on] the balance of probabilities that although the deportation order may have been appropriate six years ago the circumstances now mean that it is not appropriate to activate it. I therefore allow the appeal against the deportation order and also under the human rights provisions.
37. I do not take this decision lightly as I consider the deportation of criminals is in principle a valid exercise and am hesitant to reverse a decision that has been made by a Judge and the Secretary of State."
10. The Secretary of State sought permission from the Immigration Appeal Tribunal to appeal against the adjudicator's determination. The grounds that were advanced read as follows:
"1. The adjudicator at paragraph 36 agrees that the deportation order, on the balance of probabilities 6 years ago, was appropriate. The adjudicator cannot now say that it is not appropriate [i.e. the date of the decision is the relevant factor here]. This renders the determination 'unsafe'.
2. There is no breach of ECHR article 8 as the family unit can be removed together.
3. The Secretary of State has properly carried out the balancing exercise, i.e. considers it proportionate to a social need being fulfilled, in particular to pursue the legitimate aim of the prevention of crime."
11. Permission was granted by a Vice-President of the Immigration Appeal Tribunal in the following terms:
"It is arguable that the adjudicator has erred in purporting to carry out the Article 8 balancing exercise himself, rather than confining himself to considering whether the decision of 7 March 2002 to refuse to grant leave to remain was outwith the range of reasonable responses open to the respondent.
The adjudicator arguably had no power to 'allow the appeal against the deportation order' (determination, paragraph 36).
All the grounds may be argued."
I make no comment at this stage on either of those documents.
12. When the matter came before the Immigration Appeal Tribunal the Secretary of State by this stage was represented, as he had not been represented before the adjudicator. We are told by Miss Grey, and entirely accept, that it was understood on all sides that the Vice-President's reference to the adjudicator having no power to allow the appeal against the deportation order was in fact a reference to his belief that he was dealing, not only with an appeal under section 65, but also with an appeal under section 63; and she tells us, and we accept, that the matter was argued on that basis. What force it was thought to have is not so clear. The Immigration Appeal Tribunal accepted the argument, whatever it was, saying this:
"5. It is clear that there was no power to allow an appeal against the deportation order where the basis for the liability to deportation is made under Section 3(6) of the 1971 Immigration Act, that is where a person has been convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered to do so.
6. In those circumstances the only material decision is that of the refusal of leave to remain. In those circumstances it is an erroneous argument to assert that there was any decision to which Schedule 4, paragraph 21(1)(a) might apply.
7. In those circumstances the entirety of the reasoning of the Adjudicator seeking to overturn the making of the deportation order and indeed the deportation itself is wholly erroneous and that part of the decision cannot stand in any event."
13. It is perfectly right to say that the adjudicator did purport, in his paragraph 36 already quoted, to "allow the appeal against the deportation order". Whether that was merely some looseness of language is difficult to say. But to the extent that he purported to be quashing the deportation order, as opposed to allowing an appeal against the Secretary of State's decision to deport, then the Immigration Appeal Tribunal was correct in its view.
14. The Immigration Appeal Tribunal then went on to say that the decision of the Secretary of State in the reasons for refusal letter were:
"10. ... plainly within the range of permissible responses and the view could certainly be taken in the light of M* (Croatia) that there is no basis to interfere with that stance either by the Adjudicator or ourselves."
15. They then went on to review the adjudicator's determination and said this:
"18. The Secretary of State is entitled to exercise control over immigration into the United Kingdom. In the circumstances of the case we can see no basis that give effect to deportation let alone the refusal of leave to remain gives rise to a sustainable basis to the latter decision was one which is disproportionate."
I think there has been some slight garbling of the language there, but it is clear what the Tribunal originally said
"Accordingly, whilst the passage of time has produced some material change in factual circumstances, other than the fact that the Appellant has served his prison sentence and been released on one basis of a licence condition for another, really makes no material difference to the point."
16. In other words, they thought that there had been an improper or inadequate balancing by the adjudicator of the conflicting considerations of, on the one hand, the importance of his family life and, on the other hand, the importance of immigration policy as reflected in decisions to deport persons convicted of serious criminal offences.
17. It is clear that the understanding of those concerned in the case was that the issue before the Immigration Appeal Tribunal was the validity or otherwise of reliance on M* (Croatia), or more particularly the assumption as to the degree to which and the circumstances in which an adjudicator should exercise his own decision-making powers, as opposed to deferring to the judgement of the Secretary of State.
18. Subsequent to this determination, M* (Croatia) was reviewed by this court in the well-known case of Huang v Secretary of State for the Home Department[2005] EWCA Civ 105. The Secretary of State frankly accepts that, because of the view taken in Huang (I quote from Miss Grey's skeleton argument):
"... it is accepted that the IAT's decision cannot now stand, and that the case should be remitted to the IAT for re-consideration."
19. The contention that the matter should be reconsidered is based upon two linked grounds which are said to demonstrate an error of law on the part of the adjudicator. The first is the point about the mixed jurisdiction under section 63 and section 65, as I have already sought to explain. The second and more general claim is that in his determination the adjudicator gave inadequate weight to the interests of immigration control, and no weight at all to the particular reason for making of deportation orders that is to be found in the general deterrent effect of the making of such deportation orders.
20. I take those matters in turn. Miss Grey rightly accepted that the question of the adjudicator's perception and the basis of his approach was only relevant if it had in some way disported or caused him to take the wrong general approach to the question. I cannot see any point at which it can be said that this error on his part, if such it was, had a material effect on the outcome of the case. True it is that in paragraph 17 reference was made to paragraph 364 of HC 395, the adjudicator saying that he had to consider the same factors as the Secretary of State had in reaching his decision to deport. That is related to the original decision, but Miss Grey perfectly rightly accepted that the matters that the adjudicator there sets out were relevant to a decision in respect of Article 8. I fear I was not persuaded in any other respect that this issue had sufficiently distorted the adjudicator's approach.
21. I therefore turned to the nub of the case, which is whether the adjudicator made an error of law in his determination. I quite accept that the approach of this court in Huang cannot be directly imposed on a case involving issues of deportation for serious crime. That is because, as Laws LJ made clear in that case, there are policy issues legitimate to the Secretary of State involved in deportation for serious crime, as set out by this court in Samaroo v Secretary of State for the Home Department[2001] EWCA Civ 1139, to which an adjudicator must give regard; and it is not open to him to make up his own mind as to the correctness or otherwise of the Secretary of State's policy. Laws LJ makes that clear in paragraph 61 of the judgment in Huang.
22. What did the adjudicator do in this case? He is criticised for not having referred in terms to Samaroo, a criticism that I have to say comes uncomfortably from a litigant who chose not to be represented before him at all. Had the Secretary of State attended upon the adjudicator no doubt the case of Samaroo would have been put to him, as would the considerations very cogently put before us by Miss Grey today. But they were not. That of course is not a reason for upholding the adjudicator, if indeed he erred. But in my judgement he did not err. I have already set out the nub of his determination. It is quite true, as Miss Grey pointed out, that that passage already quoted was preceded by a fairly extensive analysis of the appellant's family situation, based upon the judgement of the Master of the Rolls in Mahmood. That was understandable in this case because it seemed to me that the adjudicator was properly anxious to establish that what he was told about the family situation was indeed genuine and cogent, and he went to some trouble, in part of the evidence that I have already cited, to demonstrate that.
23. The reason why it was particularly important for an adjudicator to be well assured that he could rely upon what he was told about family connections was precisely because of the unusual nature of this case. It is unusual for a deportation order in the case of a man who has committed an offence as serious as this not to be upheld, and I cannot accept that the adjudicator was not seised of that point. He started paragraph 34 by saying that he fully appreciated why the deportation order was made. At the end of that paragraph he refers to the Secretary of State's duty to maintain law and order and effective immigration control, and he recognises the seriousness of this offence. But he says that, balancing all the matters together, he considers that deportation of this man would be disproportionate. He ends in paragraph 37 by saying:
"I do not take this decision lightly as I consider the deportation of criminals is in principle a valid exercise and am hesitant to reverse a decision that has been made by a judge and the Secretary of State."
24. The only thing missing from that is the element of general deterrence mentioned in Samaroo, to which Miss Grey said he gave no weight to at all. I do not accept that criticism. The adjudicator was aware of the general policy. I do not know what background in the criminal law this adjudicator has, but anybody who has spent more than five minutes in that jurisdiction will know that one of the objectives of punishment -- be it imprisonment or deportation -- is general deterrence, as well as deterrence of the specific individual.
25. So far as giving weight to the Secretary of State's policy is concerned, unless we are to say that the passages I have just cited were mere formalistic recitation by this adjudicator and did not truly form part of his reasoning, then I fear it is not possible on the face of this determination to say that he erred in law. He clearly did give weight, and realised he had to give weight, to the Secretary of State's policy, and he properly balanced that against the other considerations. He did not make the error that is potentially pregnant in paragraph 61 of Huang, of thinking that in this case also he as it were had to start with a clean sheet of paper, and make up his own mind about what the Secretary of State's policy ought to be. He did not say that at all. He took the policy as a datum and properly balanced it.
26. Miss Grey properly accepted that she could not maintain this point except by demonstrating that the adjudicator had given no weight at all to the factors countervailing to the family situation. The adjudicator produced a commendably brief but clear and cogent determination. It revealed no error of law at all, and certainly not the error that Miss Grey sought. There was therefore nothing that the Immigration Appeal Tribunal could properly reverse. I would allow the appeal on that ground.
27. I do have to go back, however, to say something about the way in which this matter has come before this court. In deference to Miss Grey's careful and powerful argument, I have in this judgment considered the substance of the case that the Secretary of State now wishes to put; and rejected it. But on the material that led up to the Immigration Appeal Tribunal, in my judgement there was no ground for doing that at all.
28. The Vice-President gave leave on the basis that the adjudicator that erred in purporting to carry out the Article 8 balancing exercise himself. Miss Grey was constrained to accept that she could not say that that was the error that the adjudicator had performed. The error that he was alleged to have made was not by carrying out the exercise, but by getting it wrong. Similarly, the grounds to the Immigration Appeal Tribunal simply cannot be construed as revealing the point that has been debated in this court. This is not merely a technical complaint, but an underlining of the need for appellate bodies not to launch upon appeals unless they have proper jurisdiction to do so.
29. In the recent case of B v Secretary of State for the Home Department at paragraph 18, the Master of the Rolls said this:
"[Counsel for the Secretary of State] accepted that there were shortcomings in the grounds of appeal, but submitted that the court should as a general rule not take too critical a view of grounds of appeal, since these were often drafted by persons with an inadequate understanding of the law. We cannot accept that submission. While a court will always wish to ensure that the substance of the case is not lost just because of poor drafting, the grounds form the agenda on which the IAT considers the grant of permission and, if granted, conducts the appeal. As this case shows, with the recent limitation of the jurisdiction of the IAT it is particularly important that the grounds should clearly establish that the appeal does at least in form fall within that jurisdiction. And in any event we would certainly not accept such a submission in respect of an appeal brought by the Secretary of State. Where the Secretary of State seeks to appeal against an adjudicator's decision it is important that the grounds of appeal should be settled by someone who is capable of identifying clearly the points of law on which it is alleged that the adjudicator has erred."
30. I, for my part, would not wish the message to be drawn from the conduct of this appeal that, just because we have been persuaded by Miss Grey to hear an appeal that in my judgement we probably should not have been hearing at all, the injunction of the Master of the Rolls in B may not be taken very seriously by this court in future should further grounds of appeal such as that which we have in this case appear before us.
31. LORD JUSTICE SEDLEY: I agree.
32. MR JUSTICE RIMER: I also agree.
ORDER: Appeal allowed with costs.
(Order not part of approved judgment)
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