JZ (Colombia) v Secretary of State for the Home Department

This is a renewed application for permission to appeal by JZ from a decision of the AIT which, on a reconsideration, confirmed its earlier decision dismissing his appeal against the Secretary of State’s decision to deport him and his claim on Article 8 grounds.

The applicant, a 41-year-old citizen of Colombia, arrived in the United Kingdom in 1996 with his wife and two sons, then aged six and two. He successfully claimed asylum and was granted indefinite leave to remain but on 22 November 2002 he was convicted of importing the equivalent of three-quarters of a kilogram, at 100% purity, of cocaine and sentenced to ten years’ imprisonment for that very serious offence. He obviously did well in prison and was granted parole in April 2007.

The Secretary of State’s decision to deport the appellant was made pursuant to article 33(2) of the Refugee Convention and section 72 of the Nationality, Immigration and Asylum Act 2002 which presumes for the purposes of the Convention that a person sentenced to at least two years’ imprisonment has been convicted of a particularly serious crime and constitutes a danger to the community.

In its original decision it was arguable that the AIT had conflated the two elements of this presumption. One of course relates simply to the crime itself; but danger to the community is essentially a forward-looking assessment based on all the circumstances of the case, including of course the circumstances in which the crime came to be committed.

Of course the applicant had been convicted of a serious crime so the first part of the presumption was met but it was argued that he had rebutted the presumption that he was a danger to the community because probation reports, Parole Board findings and his post-conviction conduct showed that the risk of his re-offending was low. On the reconsideration the immigration judge said that the assessment of a person’s danger to the community has to take account of both the risk of recurrence and the gravity of the event which might occur and that although the first decision of the AIT had been clumsily expressed that is what in fact the tribunal had meant. There was therefore no material error of law.

Ground 1 of the Notice of Appeal to this court challenged this finding. It was argued that in making its assessment of risk the AIT had ignored the weight of the evidence, which was to the effect that there was no risk of the applicant re-offending. In rejecting this ground Richards LJ said that a low but significant risk of re-offending can justify a finding of dangerousness or be insufficient to displace a presumption of dangerousness where such re-offending, if it occurs, is liable to have serious adverse effects.

It is this assertion which Miss Webber, who now appears for the applicant, challenges. In support of a submission that this sets too low a threshold she refers the court to various commentaries on the Convention and, by analogy, to our domestic criminal law where dangerousness is defined in the Criminal Justice Act 2003 and to the UNHCR report on the Convention where there is a passage discussing the meaning of the words “danger to the community”. All this, she says, indicates that danger to community means a significant risk of serious harm. Had this material been put before Richards LJ he might have reached a different conclusion as to the sustainability of the Tribunal’s findings.

Skilfully as ever though these submissions have been put, I do not accept them. The words of the statute are “danger to the community”. There is no reason to qualify them in the way that Miss Webber has suggested. The word “danger” carries with it a sufficiently serious connotation and to focus simply upon the gravity of the risk is to ignore the point, which is central to this decision, that although the risk may be low it is of something very serious. Both elements have to be taken into account in deciding whether a person is or is not a danger to the community.

Miss Webber disagreed with me when I suggested to her that this was a question of fact. She submitted that it was a question of fact which had to be informed by the commentaries to which she referred in her submissions. Danger had to be defined in a way which required something more serious than the facts of this case indicated.

As I have said I do not accept this submission. Miss Webber is right to say that it does not follow from the fact that someone has committed a serious crime that he remains a danger to the community. But the fact that he has committed a serious crime is something which obviously can be taken into account when one is assessing whether there is a danger to the community. Even if there is only a low risk of reoffending but that risk involves the commission of a very serious offence (which is the way the fact-finder in this case approached the matter) it seems to me that it is a perfectly permissible to conclude that such a person is a danger to the community.

The second ground of appeal relates to the Tribunal’s Article 8 finding. Here it is contended that the Tribunal did not sufficiently engage with the claim, founded as it was on the fact that the appellant’s wife and two children had been granted indefinite leave to remain because, as members of the applicant’s family, they were at risk if returned to Colombia. They had lived here for more than ten years and the Article 8 considerations had not focused sufficiently on their position. The Tribunal had been diverted, Miss Webber says, by considerations as to whether or not the family actually would return if the applicant was deported.

In rejecting that ground Richards LJ said the original Tribunal gave sufficient reasons to show that it had considered the material issues and evidence in respect of both family life and private life under Article 8. That is a reference to paragraphs 42 to 46 of the Tribunal’s decision. Richards LJ goes on:

“It also made clear at paragraph 37 that it had taken into account the skeleton argument and the cases provided with it.” [Those cases, I interpolate, included the case of Boultif v Switzerland [2001] ECHR 497 which Miss Webber referred me to this morning] The findings made, including the finding that there was no reason why the family could not return with the applicant to Colombia and the finding that he had enjoyed very limited private life in recent years were reasonably open on the evidence. There was no error of law in its approach. If however it erred in failing to consider proportionality of removal in circumstances where the family could return as a unit to Colombia the Immigration Judge on reconsideration was entitled to conclude that no finding could properly have been made that such removal would be disproportionate and that any error of law was therefore material.

I agree with this assessment. It is clear that between them the tribunals did consider the cases and the European Court’s jurisprudence on the way in which Article 8 should be applied to cases of this kind. I can see no real prospect of persuading this court that the Article 8 claim was wrongly rejected.

For those reasons this renewed application for permission to appeal must be dismissed.