OG (Turkey) v Secretary of State for the Home Department

This is an appeal in an immigration case which concerns a decision of the Secretary of State to expel the appellant, Mr G, a citizen of the Republic of Turkey, on the grounds that, because of commission of criminal offences by Mr G, his presence in this country was contrary to the public interest.

The matter has unfortunately been very much drawn out. Mr G was convicted of the index offences as long ago as August 2005 and emerged from his prison sentence some time in the middle of 2006. The deportation order under challenge was made in March 2006. An application to set that order aside was heard and granted by Immigration Judge White in May 2006. The Secretary of State then sought reconsideration of that application, which was granted. The second tribunal reconsidered Immigration Judge White’s decision and came to a conclusion upholding the Secretary of State. Mr G has permission from this court to appeal against the setting aside of Immigration Judge White’s determination. He does not have permission to appeal so far as the second-stage reconsideration is concerned. If Immigration Judge White’s determination stands and should not have been set aside then the deportation order itself has to be quashed.

The facts are shortly these. Mr G was born in 1982 and entered this country lawfully in 2002 as the spouse of his then wife, Mrs G, they having been married in April of that year. He was subsequently granted indefinite leave to remain on 19 November 2003. There is a child of that union and, although the matter has not been relied on at all in the proceeding before us, I think that that child, having been born in this country to someone with indefinite leave to remain, must in fact be a citizen of the United Kingdom.

Mr G’s conviction in August 2005 was on two counts, one for administering poison with intent to injure or annoy and the second for attempting to pervert the course of justice. He was sentenced to a total of 15 months’ imprisonment. The circumstances of those offences are serious. The conviction in respect of administering poison took the form of administering an ecstasy tablet to his wife. There was some controversy as to why in fact he had done that. It appears to have been an incident in what was a turbulent domestic life but there is no doubt that at the least what he did was, and was known by him to be, a very dangerous thing to do.

The conviction for attempting to pervert the course of justice arose from the fact that while he was in custody awaiting trial on that count he wrote to his wife and mother-in-law attempting to induce the wife to have the charges dropped. That was again a serious step for him to have taken and it is not surprising that that offence also incurred a fairly substantial period of imprisonment, as I have described. The Secretary of State and the Immigration Judge had to address and have in mind paragraph 364 of the Immigration Rules which, to summarise it as the Immigration Judge did, in my view correctly, requires a balancing of the circumstances of the offence and of the person’s conduct and any compassionate or personal circumstances that affect him. That is the task upon which Immigration Judge White embarked. The complaint that was made successfully by the Secretary of State to the reconsideration tribunal, was in respect of, and I use that phrase advisedly for the moment, the Immigration Judge’s handling of the issue of whether Mr G was likely to re-offend. Immigration Judge White had reminded himself of what was said by the AIT in the case of CW (Jamaica) [2005] UKIAT 00110, from which he cites at paragraph 15 of his determination. It is clear that amongst the considerations that have to be taken into account are the seriousness of the offence but also the risk of the subject re-offending.

The complaint of the Secretary of State before us, as advanced by Mr Auburn, is that in his determination Immigration Judge White gave no weight or, as Mr Auburn put it, no consideration to the seriousness of Mr G’s offence but allowed his judgment to be completely taken up with consideration of whether Mr G was going to re-offend. The first problem for the Secretary of State is that that is not how the complaint was put in the application for reconsideration.

Two grounds were advanced by the Secretary of State, complaining of what Immigration Judge White had determined. The first is not pursued and the second read as follows:

“The [Immigration Judge] erred in his own conduct of the balancing exercise by not placing enough weight on the seriousness of the appellant’s crimes. The appellant was convicted of administering poison with intent to injure…and attempting to pervert the course of justice. The victim was his wife. This is a serious matter which deserves due weight to be attached to it… Furthermore the Immigration Judge appears to have attached importance to the appellant’s risk of re-offending, in particular his risk of re-offending against his wife… This may be a relevant factor to take into consideration but it is not an important one.”

That complaint appeared to be that the Immigration Judge, although placing weight on the seriousness of the appellant’s crime, had not placed sufficient weight on it. As this court made clear in the case of Miftari the purpose of the application for reconsideration is to set the agenda for the reconsideration hearing. If the agenda indeed was that weight, but not enough weight, had been placed on the seriousness of the appellant’s crimes it is difficult to see that it is now open to the Secretary of State to argue that there had been no consideration at all given to the seriousness of the appellant’s crimes. I would, however, not uphold this appeal simply on that ground, although it is not a good start to the Secretary of State’s case.

If we turn to what Immigration Judge White in fact said, it is in my view clear that, first, he was aware of the importance of the seriousness of the appellant’s crime; and, secondly, that it was for him in the exercise of his discretion to consider how that aspect of the case should be weighed against other factors, including the risk of Mr G reoffending and the compassionate and family circumstances in which Mr G now found himself.

The judge started his determination by setting out the circumstances of Mr G’s offences and he repeated them in paragraph 16 of the determination, immediately after the reference to CW (Jamaica) of which I have already made mention. It really is not plausible to say that he was not aware of the jurisprudence requiring him to consider the seriousness of the offence or that he did not give proper consideration to it. True it is that he says very little more about the seriousness of the offence but, as was pointed out in the course of argument, those matters were matters of record. It really was not necessary for the Immigration Judge to descant further upon what Mr G had done.

When the judge came to sum up his conclusions in paragraph 34 of his determination he said this:

“Under Paragraph 364 of the Immigration Rules I am to perform a balancing exercise, that is balancing the public interest in the removal of the Appellant against the compassionate circumstances. In summary, for reasons I have set out in paragraphs 16 to 23 above, [and I interpose I will come back to those in a minute] I acknowledge that the Appellant has been convicted of serious offences for which he was given a custodial sentence. I consider however that there is a low risk of the Appellant’s re-offending and thus a low risk of the Appellant harming the public (in particular his wife) in the future. I also bear in mind the compassionate circumstances that the removal of the Appellant would bring about particularly in regard to the disruption of his relationship with his daughter.

35.

I have given considerable thought to this matter. My conclusion is that on the particular facts of the case the compassionate circumstances favouring non-removal of the Appellant outweigh the public interest served by his removal.”

That passage makes quite clear two things. One, that the Immigration Judge had well in mind the seriousness of the offences of which Mr G had been convicted. Secondly, by the use of the word “however” when comparing that with the risk of re-offending he made it quite clear that he was conducting a balancing exercise between those two factors, and once he embarks on that balancing exercise in the absence of irrationality (which I do not think for a moment is apparent here) he cannot be criticised for the way in which he conducts the exercise. It is for the judge to decide how the various factors weigh with each other.

Now, having said that, it is quite true that there is a great deal in this determination about the risk of re-offending. A number of paragraphs are devoted to that, which contrast with the amount of space devoted to the seriousness of the offence. There are two reasons why a lot is said about the risk of re-offending. The first, as my Lord, Keene LJ, pointed out in the course of argument, is that risk of re-offending in the future involves the weighing and careful consideration of a number of judgmental factors. It necessarily takes longer and is a more elaborate process than simply setting out what the man has been convicted of and saying that it is serious. Secondly, the reason why the Immigration Judge went into the risk of re-offending at such length is that is what he was asked to do by the Secretary of State. It is clear from paragraph 16 and 17 of the determination that the Home Office Presenting Officer argued principally that this man should be removed from this country because he was a danger to his wife. As her argument is recorded by the Immigration Judge, and no-one has told us that he got this wrong:

“[The Home Office Presenting Officer] has presented her case on the basis that it is the Appellant’s wife, as a member of the public, that needs to be protected by the deportation of the Appellant.”

So, having been told that that was the Secretary of State’s case, Immigration Judge White conscientiously went through the circumstances and likelihood to demonstrate two things: first, that Mr G was not going to be a danger to persons other than his wife; and second that that he was not going to be a danger to his wife herself. I do not find it satisfactory that he is criticised so much for concentrating on that point, which at that stage was the fulchrum of the Secretary of State’s case.

There are also in the case of Mr G strong reasons, unusual in fact in a case of this sort, at least in the experience of this court, why he was not going to be a burden to society if he stayed here. He had been in work all the time that he was here. He had a strong relationship with his daughter, as I say a British subject, and as the Immigration Judge pointed out, if he was removed from this country his wife and child would no longer be supported by him and have to have recourse to state support. These were all factors well open to the judge to make a balanced determination. It cannot be said that he gave no consideration to the question of the seriousness of the offence; and, as I think Mr Auburn rightly appreciated, he would have to put his case that high in order to be able to uphold the reversal of Immigration Judge White by the reconsideration tribunal.

I would therefore order that the reconsideration of Immigration Judge White’s determination be set aside, that his determination be restored, and that the deportation order made by the Secretary of State be quashed.

I agree.

I also agree.