OH (Serbia & Montenegro) v Secretary of State for the Home Department

This is a renewed application for permission to appeal against a decision of the Asylum and Immigration Tribunal, issued on 18 June 2007, which I will refer to as the AIT decision. The AIT was hearing an appeal from a determination of Immigration Judge Elvidge in December 2006, which I shall refer to as the immigration judge’s determination. The matter, put very shortly, is that the applicant is a national of Serbia and Montenegro of Albanian ethnicity who, in 2002, was sentenced to an extended sentence of eight years - a custodial term of four years and an extension period of four years - in respect of an offence under section 18 of the Offences Against the Person Act 1861. That clearly was a most serious offence and it was rightly considered to be such by the Asylum and Immigration Tribunal, who drew attention to the fact that there had really been no explanation of why this man was carrying the serious weapon with which he committed the offence. The issue before both tribunals was whether, in all the circumstances, Mr Heta should have a deportation order made against him, which is what the Secretary of State for the Home Department wished to do. There were a range of considerations before both tribunals. On the one hand there was the very serious offence. On the other hand there were significant matters, not of explanation or justification, but perhaps mitigation, including the fact that Mr Heta had addressed the underlying post-traumatic stress disorder that had a good deal to do with the incident itself.

There were also impressive testimonials to the positive contribution that he has made to society since coming here. The matter originally came before Immigration Judge Elvidge and Mrs Jordan in December 2006. They went into the matter in considerable detail and in paragraphs 24 and 25 they set out, in more detail than I have done, the relevant circumstances and came to the conclusion that the Secretary of State had erred in his application of paragraph 364 of the Immigration Rules because he had not given sufficient weight to the compassionate circumstances and the other facts which I have mentioned. They therefore allowed Mr Heta’s appeal. The Secretary of State sought reconsideration of that determination, which was granted in the terms set out in paragraph four of the determination of the Asylum and Immigration Tribunal. The Senior Immigration Judge was concerned that the immigration judge below might have erred in failing to follow the judgment of this court in N (Kenya) v SSHD [2004] EWCA Civ 1094, saying that the particular relevance of that judgment was the public policy considerations in respect of serious offences. Immigration Judge Lane quoted May LJ, giving the majority judgment in that court, in which he said that public policy needed to deter and to express society’s revulsion at the seriousness of the criminality.

The Senior Immigration Judge thought that that matter had not been satisfactorily taken into account by Immigration Judge Elvidge, and therefore gave permission to proceed to the second stage consideration of the Asylum and Immigration Tribunal. That tribunal concluded that the original determination by Immigration Judge Elvidge had been unjustified, in that in the balancing exercise the need to express public revulsion with the offence had not been satisfactorily taken into account.

When the original application was made to appeal to this court it was limited to criticisms of the determination of the Asylum and Immigration Tribunal. Those were considered on paper by Keene LJ, who rejected all of them. Mr Williams, who has now taken the case over, has not sought before us to pursue any of those complaints, and in my judgement he was right to take that course. What he does seek to do is to criticise the decision there should be a second stage consideration at all. In my judgement that complaint is certainly arguable. In the first instance this was a matter, for not the discretion but the judgement, of the immigration judge before whom the matter came. Immigration Judge Elvidge and his colleague set out in their determination a clear and full account of all the facts, which in no way suggested that they were unaware of the seriousness of the offence that this man had committed. It is quite true that they did not specifically refer to the judgment of this court in the case of N, but we have said time and time again that a tribunal is not obliged to set out every authority, particularly when it is an expert tribunal, as this tribunal was, who may be expected to have the jurisprudence in mind.

Without seeking to pre-empt any other conclusion, paragraphs 24 and 25 of Immigration Judge Elvidge’s determination did arguably adequately cover the balance that he had to strike in reaching this, no doubt difficult, decision. In order for his determination to be reconsidered it had to be shown that he had made an error of law and again, subject to further argument in due course, it seems to me extremely difficult to see what error of law was made. Certainly I for my part would not accept that it is an error of law simply not to have recited in terms the well-known requirements set down by the judge of this court in the case of N.

I would therefore be minded to grant Mr Williams’ application for permission to amend his grounds of appeal by striking out those that he does not rely on and by substituting the one ground he now relies on: that the immigration judge who granted the reconsideration erred by granting such reconsideration where no error of law had been made by the original tribunal. I say nothing about what the Asylum and Immigration Tribunal did say when it addressed the case because that, in my judgement, is not relevant to the matters with which this court has to be concerned.

I would therefore grant permission on that ground. As I have already indicated to Mr Williams, I would invite him to amend the papers before us at the moment so that the ground upon which he relies is set out separately as a ground of appeal, and the matters that he advances in what is at present described as grounds of appeal to support that ground are properly set out, together with anything else that he might think appropriate, in a fresh skeleton argument. I would give him 14 days in which to do that.

To me too it seems clear that there will have been no need for the first tribunal to invoke the case of N expressly so long as they duly applied the law as described uncontroversially by May LJ, for example in paragraph 64 of that judgment. It seems to me cogently arguable that that is just what the first tribunal did and that there was therefore no warrant for finding it to have erred in law. This (wisely, if I may say so) is now the entirety of the intended appeal. It seems to me to be cogently arguable, and if it succeeds it seems to me at the moment that no remission will be called for. It will be a matter of restoring the original decision. I too would allow the amendment and grant permission to appeal.