GO (Nigeria) v Secretary of State for the Home Department

This is a renewed application on behalf of GO, a Nigerian national, for permission to appeal after refusal by Sir Henry Brooke of the Asylum and Immigration Tribunal’s decision on a reconsideration of the Secretary of State’s decision of 14 April 2005 to deport him following his conviction and sentence in March 2004 to three and a half years in prison for theft, handling stolen goods and obtaining property by deception. He came to this country in 1989, where he married a woman resident and settled here and on that basis was granted indefinite leave to remain. He has two children by that marriage and one from another relationship with whom he has regular contact.

In the seven years leading up to the March 2004 convictions there was an escalating pattern of commission of offences of dishonesty and, as the Immigration Judge, Miss Sarvanjan Kaler, who first considered his case, found, a propensity to reoffend. The sentences imposed on him for the offences in March 2004 indicated offences of dishonesty of various kinds of great seriousness. When the matter came before Miss Kaler in October 2005 the evidence before her, in addition to that of GO’s criminal record, was that he had a settled family life here with his wife and children but that, if deported to Nigeria, his wife had expressed her unwillingness to join him there. Miss Kaler in her determination seemingly accepted that declaration of unwillingness as an indication that the wife and the children:

“[…] would in all probability not accompany him to Nigeria [if deported there]”.

One of the questions, an important one for Miss Kaler, under Section 3, sub-section 5 of the Immigration Act 1971, was whether GO’s offences were so serious as to justify deportation. In her approach to answering that question, she seems to have properly directed herself on the balance of factors involved, the seriousness of the offence or offences, whether there was a pressing social need for deportation and whether in the circumstances deportation would be disproportionate.

Miss Kaler’s assessment of the offences, the subject of the deportation decision, were that they were undoubtedly serious but, she observed, not so serious as offences of violence, sex, arson and drugs or terrorism. And she went on to reason on that account not:

“… so great as to merit automatic deportation”

and

“… not by their nature offences that strike at the heart of the community in the way that offences involving violence, sex, etc do”.

She concluded, and this appears to have been a value judgment on the facts of the case, not one of law, that they were not therefore so serious that there was a need in the public interest for his deportation, and it would in any event be disproportionate to deport him, having regard to the length of time he had been living here and his personal family circumstances. Those factors, she expressly stated in paragraph 35 of her determination, were decisive. Nevertheless, the very fact that she had considered them and the balance to which they led was a clear indication that she regarded the offences of such seriousness as to merit deportation and to require consideration in the light of the circumstances of pressing social need and disproportionality.

However, Miss Kaler’s overall conclusion was expressed a little more guardedly in paragraph 36 of her determination, in which she said:

“On the totality of the evidence before me, I find that the Appellant has just about discharged the burden of proof and reasons given by the Respondent do not justify the refusal. Therefore the Respondent’s Decision is not in accordance with the law and the applicable Immigration Rules.”

Again, in that guarded reference there is a clear indication that she gave a considerable degree of weight to the seriousness of the offences.

The Secretary of State challenged that decision by application to the Asylum and Immigration Tribunal for reconsideration. He relied on three main grounds: 1) Inadequacy of reasons, 2) Material error of law in concluding on the evidence before her that GO’s wife and children would in all probability not accompany him to Nigeria; and, importantly from the point of view of this application, 3) that Miss Kaler had wrongly not regarded the 2004 convictions of dishonesty as capable of being serious crime for immigration purposes.

That third ground was abandoned by the Secretary of State when the matter came before the Asylum and Immigration Tribunal on its first stage reconsideration. Nevertheless the Tribunal, in considering the application in paragraph 11 of its determination, expressed the view that Miss Kaler had made an error of law in her treatment of the issue of seriousness of the offences in play. That conclusion, which it was entitled to reach, was enough to enable it to go on to consider what form any consequent reconsideration should take. When it came to express its order as to that matter, it did so in these terms:

“The Immigration Judge may have erred in law for one or more of the reasons stated in the grounds. [By now given the withdrawal of ground 3 reduced to two] Reconsideration is ordered on all the grounds as lodged. There is a real possibility that the tribunal would decide the appeal differently on a reconsideration.”

There is no doubt that an Asylum and Immigration Tribunal is not limited to the grounds put before it if it detects an error of law which in its view requires reconsideration of the application. Nevertheless, it is unfortunate in this case that, from what Miss Mallick who appears on behalf of GO tells us, that part of the ground before the tribunal, having been withdrawn by the Secretary of State, the matter was not argued before it.

At all events, at the second stage reconsideration, the Tribunal rehearsed as part of its overall decision the finding in paragraph 11 of the first stage reconsideration that Miss Kaler had erred in law in her treatment as to the seriousness of the offence for the purpose of deportation. It reappears word for word.

Having reached that decision and confirmed it after a detailed recitation of the evidence and the issues and the considerations to and fro, it came to a conclusion on the balance of those considerations in paragraph 48 of its determination in these short terms:

“We have taken into account all the evidence and submissions and representations before us but in our judgment the balance falls in favour of deportation. We considered the case law but in our view it is not necessary to summarise it further. Each case is to be considered in light of case law but taking into account its facts.”

Thus, the Tribunal took the view that Miss Kaler had erred in law in her treatment of the critical issue, the seriousness of the offence, and having reached that threshold went on to decide, on a full reconsideration of the matter as ordered, that the balance fell the other way.

In my view, given the way in which Miss Kaler set out her reasoning in paragraphs 30 to 33 of her determination, it is strongly arguable that she did not treat that matter as one of pure law or treat it in such a way as to give it disproportionate weight in her finding so as to amount to an error of law. Her approach was one of balancing all the relevant considerations. Accordingly, in my view, there was arguably no identification by the Tribunal on either stage of its reconsideration of a material error of law which should have prompted it or entitled it to go on to deal with the matter on a full reconsideration of the evidence.

For those reasons, and those reasons alone, I would grant permission to appeal.

I agree.