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

This is an appeal under section 103B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”), from the determination of the Asylum and Immigration Tribunal (“AIT”) given on a reconsideration by Senior Immigration Judge McKee on 17^th October 2008. The Appellant (“DA”), a Colombian national, had appealed against the decision of the Respondent (“the SSHD”) on 5 December 2007 to make a deportation order against him under section 5(1) of the Immigration Act 1971 (the “1971 Act”), on the ground that the Secretary of State deemed DA’s deportation to be conducive to the public good pursuant to section 3(5)(a) of the 1971 Act.

Permission to appeal was refused on paper by Sir Richard Buxton. A renewed oral application was made before Sullivan LJ and he decided to grant permission on one ground only. That ground had not been argued below. Sullivan LJ considered, however, that this was an “obvious point on the face of the documents and there is a strong prospect of success”. In order to explain the point it is necessary to set out the background facts.

DA was born in Colombia on 22 May 1979. He arrived in the UK on 27 April 1989 (aged 9) with his Colombian grandmother, in order to visit his mother, who lived in the UK. His mother had previously been granted indefinite leave to remain in the UK after she had married a Spanish (and therefore EU) national. DA was granted indefinite leave to remain in the UK on 7 September 1989, as a dependant of his mother.

DA has lived in the UK since 1989, apart from a period between 1991 and 1993 when he returned to Colombia to live with his grandmother. DA also returned to Colombia for holidays when he was 19 and 23. At the age of 16 or 17, he left his mother’s home and lived in his own flat. Between 1999 and 2004, he cohabited with a girlfriend, by whom DA had a son, J, who was born in 2000. When DA and his girlfriend broke up in 2004, J went to live with his mother. On the findings of the first AIT panel (dated 8 July 2008) there was no effective contact between J and DA after that time.

On 4 December 2004 DA was convicted of an offence relating to the destruction and damage of property. He received a Community Punishment Order of 40 hours unpaid work. He was also ordered to pay £500 compensation to the victim.

In April 2007, at Southwark Crown Court, DA pleaded guilty to an offence of assault occasioning actual bodily harm (“AOABH”) and also to an offence of being in possession of a false identity document with intent, viz. a false Spanish passport. The first offence arose out of an incident when DA attacked a former girlfriend (not the mother of J), using a screwdriver. HHJ Goymer sentenced DA on 30 April 2007 to a total of 2 years 6 months imprisonment. The sentence was made up as follows: 27 months for the AOABH offence and 3 months consecutive for the false passport offence.

Judge Goymer considered whether he should recommend deportation, pursuant to the Court’s power to do so under section 6(1) of the 1971 Act. The judge decided he would not make such a recommendation. He gave his reasons in the course of his sentencing remarks. He said:

“I shall not in the circumstances make a recommendation for deportation despite the seriousness of the offence to which you have pleaded guilty. I bear in mind that you have lived in this country since a very young age. You have got indefinite leave to remain. But the factor that weighs very heavily with me is that you have a young son nearly 7 years of age. You had contact with him, certainly from birth up until the time he was about 3½. Since then of course you and his mother have lived apart and there have been difficulties in that relationship. Whether you are allowed contact with him and under what conditions will be a matter for a family court to decide and not for me. But I do not think it right for that reason in the circumstances to make a recommendation for deportation. I decline to make such a recommendation ……”.

On 5 December 2007 the SSHD gave to DA Notice of a Decision to make a deportation order against him. The Notice stated:

“To [DA], Colombia 11 May 1978

On 01 February 2007 at Southwark Crown Court, you were convicted of assault occasioning actually bodily harm and possession of a false identity document with intent. In view of these convictions, the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) requiring you to leave the United Kingdom and prohibits you from re-entering while the order is in force. She proposes to give directions for your removal to Colombia, the country of which you are a national.”

On the same day an explanatory letter was written to DA who was, at the time, still serving his prison sentence. The letter set out the background history of DA. At paragraph 5 it stated that the SSHD regarded the two offences for which he had been imprisoned as serious, particularly as one involved violence. At paragraph 7 of the letter there is a long quotation from the sentencing remarks of the judge which sets out his reasons for imposing the sentence that he did. Paragraph 8 of the letter states that, because of these convictions and the reasoning of the judge, consideration had been given as to whether or not deportation was appropriate in the case of DA. Paragraph 8 of the letter continues:

“Specific regard has been given to paragraph 364 of the Immigration Rules, that in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstance of the case. It will only be in exceptional circumstances that the public interest might be outweighed by compassionate circumstances where the deportation would be lawful under the Human Rights Act.”

Paragraphs 9 to 11 of the letter give personal details of DA and his convictions. Paragraph 12 of the letter deals with the question of whether or not DA could adjust to a new life in Colombia. It states, somewhat inaccurately, that DA spent his “youth and formative years” in Colombia, although, in fact, he had come to the UK when only 9 years old. It also states that the SSHD’s “records” showed that DA received correspondence from his father and grandfather who still resided in Colombia. Those facts were subsequently challenged by DA, who said that his grandfather had been dead for 30 years.

Paragraph 13 of the letter deals with the position of DA’s mother who was, by then, disabled. The paragraph states that DA’s mother “is cared for by her husband and daughter”. The letter states that DA “would be able to remain in contact with your family via normal channels of communication …..”. It says, perhaps somewhat over-optimistically, that his family could visit him in Colombia should they wish to do so.

Paragraph 13 then deals with the relationship between DA and his son. It states:

“We are also aware that you have 1 child who is British and an ex-partner in the UK. Our records show that this relationship is not subsisting and that you last saw your son in 1996. [It is now said that this was a typographical error for 2006]. He has not written to you or visited you whilst you have been in prison. We also hold a copy of a court order advising you not to remove your son from their [sic] mother, house or school without the consent of the court. In considering whether it would be right to deport you the effect that deportation is likely to have upon you and your family and the wider community has been taken into account, as well as whether any disruption to your family and private life is justified in light of your criminal convictions.”

Paragraph 14 of the letter states that the Border and Immigration Agency is satisfied that upon balancing DA’s rights to a family life and the legitimate aim of the UK to ensure the prevention of disorder or crime, his deportation would not place the UK in breach of Article 8 of the ECHR and the Human Rights Act 1998 (“HRA”). Paragraph 15 of the letter states that the SSHD has concluded:

“……. That in the light of the seriousness of your criminal offence, your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals”.

Paragraph 16 of the letter states that careful consideration has been given to the question of whether DA should be allowed to remain in the UK because of its obligations under the ECHR. It concludes that, “…on the information available it is not believed that to deport you would breach our obligations under any of the Articles.” Paragraph 17 of the letter states that full careful consideration has been given to all the known facts of DA’s case in line with paragraph 364 of HC 395, as amended: ie. the Immigration Rules. That paragraph continues:

“Your personal and domestic circumstances have been carefully balanced against the seriousness of your crime and the need to protect the wider community. It is concluded that in your case it is appropriate to deport you to Colombia”.

It will be noted that the letter of 5 December 2007 does not say anything about the judge’s reasons for not recommending a deportation order. It is this omission which gives rise to the present appeal. The argument is that because neither the Decision Notice nor the accompanying explanatory letter of 5 December 2007 mentions, let alone considers, the trial judge’s decision not to recommend deportation, these omissions make the decision to make a deportation order unlawful. DA relies upon the decision of this court in M v SSHD [2003] EWCA (Civ), [2003] INLR 306, in particular paragraph 19 in the judgement of Laws LJ. I shall have to consider this judgment in more detail below.

DA appealed to the AIT. The appeal was heard by a panel chaired by Immigration Judge Woolf. The panel heard evidence from DA, his mother and his sister. It examined a large amount of documentary evidence. The AIT dismissed DA’s appeal in its determination dated 8 July 2008. The reasons are comprehensive. Paragraph 53 states:

“There is no dispute that the respondent’s decision is lawful in the exercise of the power conferred by statute to deport criminal offenders on grounds that deportation is deemed conducive to the public good. ”

The AIT accepted that the proposed removal of DA from the UK as a consequence of the decision to deport would interfere with his right to respect for his private and family life under Article 8 of the ECHR. It considered whether this interference was justifiable and proportionate in the circumstances. The AIT set out, in considerable detail, the history of the relationship between DA and his son and the reasons for DA’s offences. At paragraph 76 of its reasons, the AIT stated that it had considered what weight to give to the judge’s decision not to recommend deportation when he sentenced DA. Paragraph 76 continues:

“The reasons given by the judge are reasons which we ourselves have considered in more detail. Parliament has not restricted the respondent’s power to deport those found guilty of offences to those who have been recommended for deportation. In the context of the sentencing proceedings, the judge to a large extent appears to have had regard to what he is told in mitigation. He would not unless the facts relied on by the offender were disputed by the prosecution, require evidence to be given of any fact relied on in mitigation unless the dispute had to be resolved in order to assess the appropriate sentence. There is no indication from the court’s records that the appellant was put to proof with regard to his past contact with his son or his ties if any to Colombia notwithstanding his long period of residence in the United Kingdom. We have considered not only what the appellant says about his private and family life but for the veracity of those claims in far more depth than the sentencing judge considered or was obliged to consider when deciding whether or not to make a recommendation for deportation. ”

The AIT reminded itself that it was reviewing the SSHD’s discretion to make a deportation order in circumstances where DA was not a British citizen and the SSHD had deemed DA’s deportation to be conducive to the public good pursuant to section 3(5)(a) of the Immigration Act 1971. DA was therefore “liable” to deportation, in the words of section 3(5) of the 1971 Act. The AIT further reminded itself that in those circumstances the SSHD had to follow the approach set out in paragraph 364 of the Immigration Rules. That stipulates:

“Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and protocol relating to the status of refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects ……”.

The AIT found that the presumption that the public interest required deportation was made out and that deportation would not be contrary to DA’s ECHR rights. Therefore it dismissed the appeal.

There was an order for reconsideration of that decision. The reconsideration was carried out by a panel chaired by Senior Immigration Judge McKee which gave its determination on 17 October 2008. The focus in that reconsideration was on whether the deportation order would be contrary to DA’s rights under Article 8 of the ECHR. The panel concluded that the tribunal had not made any legal error in its assessment of the Article 8 aspects of the appeal. Therefore it decided that the determination of the tribunal dismissing the appeal should stand.

The provisions of the Immigration Act 1971 relevant to this appeal are sections 3(5), 3(6), 5(1) and 6(1). They provide:

“Section 3…..

(5)

A person who is not a British citizen is liable to deportation from the United Kingdom if –

(a)

The Secretary of State deems his deportation to be conducive to the public good ……

……..

(6)

Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his convection is recommended for deportation by a court empowered by this Act to do so.

……

Section 5

(1)

Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act, the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

………

Section 6

Section 82 of the 2002 Act provides that a person may appeal to an AIT an “immigration decision”. “Immigration decisions” include, by section 82(2)(j), a decision to make a deportation order under section 5(1) of the Immigration Act 1971, but not, it should be noted, any decision under section3(5))(a), ie. that a person is liable to deportation on the ground that his deportation is conducive to the public good. Section 86(1) of the 2002 Act states that an appeal under section 82(1) of that Act against an immigration decision must be brought on one or more of the grounds which are set out under that sub-section. These grounds include the following:

“(a)

That the decision is not in accordance with Immigration Rules;

……….

(e)

That the decision is otherwise not in accordance with the law;

……….

(f)

That the person taking the decision should have exercised differently a discretion conferred by Immigration Rules. ”.

I have already set out (paragraph 18 above) the relevant paragraph of the Immigration Rules, viz. paragraph 364.

The principal argument of Mr Bazini, on behalf of DA, is that the original decision of the SSHD to make a deportation order was unlawful. This is because (it is submitted) she failed to take into account a material matter, i.e. the decision of HHJ Goymer not to recommend deportation, as he had power to do under section 6(1) of The Immigration Act 1971. Therefore, Mr Bazini submits, the decision to deport was not in accordance with the law and the SSHD is required to make a fresh and lawful decision.

Fundamental to Mr Bazini’s argument is the decision of this court in M v SSHD [2003] EWCA(Civ) 46, [2003] INLR 306. In that case M was a Bangladeshi national who had been given indefinite leave to remain in the UK. He was then convicted of charges of indecent assault on two young girls. The sentencing judge had recommended him for deportation pursuant to section 6(1) of the Immigration Act 1971. On appeal, the Court of Appeal (Criminal Division) (“CACD”) set aside the recommendation for deportation on the ground that it was disproportionate to the object of preventing crime in the UK. It is worth noting that, in setting aside the recommendation, the CACD referred to four particular factors: (a) the appellant’s past character; (b) the offences of which he had been convicted; (c) the consequences to his anonymity of the need to register (on the sex offender’s register) upon release, and (d) the serious hardship that would befall him and his family should deportation follow.

The SSHD, however, decided to deport M, as Laws LJ put it at paragraph 4 of his judgment, “under the separate provisions of” section 3(5)(a) of the 1971 Act, ie. on the ground that his deportation was conducive to the public good. M’s appeal to the Adjudicator and subsequent appeal to the IAT were dismissed. He appealed to the Court of Appeal and then took the point, effectively for the first time, that the Secretary of State, and the Adjudicator and IAT, had all failed properly to take into account the decision and order of the CACD to quash the judge’s recommendation for deportation. Therefore, it was submitted, the SSHD’s decision to deport was unlawful.

The leading judgment was given by Laws LJ, with whom Jonathan Parker and Ward LJ agreed. Laws LJ held: (i) it is only when the criminal court (either at first instance or on appeal) declines to make or quashes a recommendation for deportation “on the merits” that any question arises as to the appropriate response of the Secretary of State or the appellate authorities to that decision: paragraph 15. (ii) If the SSHD is considering deportation, comment on the view expressed by the criminal court is only necessary if it has given reasons for its decision not to recommend deportation: paragraph 15. (iii) If the criminal court has, with reasons, declined to recommend deportation, then when the Secretary of State “comes to consider the section 3(5)(a) power”, there is no presumption in favour of following the criminal court’s decision not to recommend deportation: paragraphs 16 and 18. (iv) However, when the Secretary of State comes to consider “…his own jurisdiction under section 3(5)(a) in a case such as this…”, the Secretary of State “…has to consider the prior reasoning of the criminal court and explain, however shortly, what he makes of it”. If he disagrees with it, he must explain, however shortly, why he disagrees with it. That is a matter of “legitimate expectation, or ordinary fairness or the obligation to take a rational approach to the duties of good administration”: paragraph 19. (v) When the Secretary of State “…is deciding whether or not to apply section 3(5)(a)…”, he necessarily must have in mind a “larger canvass of factors” than does the criminal court in approaching its task under section 6(1) of the 1971 Act: paragraph 24. (vi) The criminal court’s judgment on whether to recommend deportation is a relevant consideration upon which the Secretary of State must bring his mind to bear and he must decide what he makes of it: paragraph 26. (vii) The Secretary of State will have to consider other aspects which the criminal court is not equipped to comment upon. The court is, however, especially well placed to judge the gravity of an offence and the requirements of sentencing policy: paragraph 26. (viii) The Secretary of State “must confront” any conclusion on the merits by the criminal court to the effect that no recommendation for deportation be made. If the Secretary of State nonetheless decides to deport under section 3(5)(a) “..he and the appellate authorities after him must give an account, however short, of the implicit difference of view from that of the court. The Secretary of State is entitled to disagree with the court without recourse to new facts or different considerations”: paragraph 26.

In that case, this court concluded that neither the Secretary of State nor the appellate authorities had followed the proper approach. It allowed the appeal and remitted the matter to be re-heard by a differently constituted IAT. It is noteworthy that this court did not set aside the Secretary of State’s decision or require him to make a new decision. One might have thought that, logically, it would have been the right order to make if this court had held that the original decision of the Secretary of State was unlawful. Nevertheless, it is Mr Bazini’s submission that the original decision of the SSHD in this case was not lawful because of her failure to take into account the judge’s refusal to recommend deportation. He therefore submits that this court should set aside that decision, despite the fact that the AIT in this case, in the decision given by Immigration Judge Woolf, did consider what weight to give to the judge’s expressed decision not to recommend deportation: see paragraph 76 of its reasons which I have set out at paragraph 17 above.

Mr Bazini also draws our attention to the SSHD’s own policy guidelines set out in the Enforcement Instructions and Guidance, Chapter 12, under the heading “Section 3(5)(a) – Deportation on Conducive grounds”. At paragraph 12.1 there is a discussion of the reasons why a criminal court may decide not to recommend deportation pursuant to its power to do so under section 6(1) of the 1971 Act. Mr Bazini relies on the sentence in that paragraph which states: “the fact that a court has decided not to make a recommendation does not debar the Secretary of State for taking such action himself but [that fact] would be taken into account in consideration of the case”. He submits that the SSHD failed to follow her own published policy and that also means that her decision was “not in accordance with the law” within section 82(1)(e) of the 2002 Act. It has certainly been accepted in this court that if the Secretary of State fails to take account of or give effect to her own public policy in making a decision, that decision may be “not in accordance with the law”: see Abdi (DS) v SSHD [1996] Imm AR 148 at paragraph 22, per Peter Gibson LJ, with whom Otton LJ and Sir Roger Parker agreed.

Mr Bazini submits that the failure of the SSHD to take account of the judge’s conclusion in her decision to deport DA and in the explanatory letter is not cured by the AIT’s reasoning set out in paragraph 76 of the first AIT determination. If the SSHD ought to have considered the judge’s decision on a recommendation to deport and if she ought to have explained, however shortly, why she was going to deport, then her failure to do so meant the decision was not “in accordance with the law” within section 82(1)(e)of the 2002 Act. The AIT had no power to substitute its own exercise of the discretion of the SSHD which she failed to exercise herself. In this regard Mr Bazini relied on the determination and reasons of the AIT in EO v SSHD [2007] UKAIT 00062 at paragraph 38.

Mr John-Paul Waite, on behalf of the SSHD, submits that HHJ Goymer’s decision not to recommend deportation was based upon two factors which had nothing to do with the circumstances of the offence or the character of the offender himself. Those factors were (a) the length of residence in the UK of DA, and (b) his relationship with his son. Accordingly, the SSHD was not obliged to consider separately those reasons of the judge when exercising her discretion on whether or not to deport DA pursuant to the provisions of section 3(5)(a) of the 1971 Act. The SSHD proceeded to consider the very issues relied upon by the judge, as is clear from paragraphs 12 – 14 of the explanatory letter accompanying the Decision Notice. Mr Waite submits that Judge Goymer was not in the best position to make a judgment on the effect of deportation on the family and private life of DA in the UK. In this regard he relies in particular on the judgment of the Court of Appeal Criminal Division, given by Stanley Burnton J (as he then was) in R v Carmona [2006] 1WLR 2264 .

In that case the offender, who was a Portuguese national, had been convicted of 14 offences, all of which arose out of the large scale theft of cheques from a Royal Mail sorting office. The offender had settled in the UK with a partner and two children. When passing sentence, the judge took 39 other offences of forgery into consideration. He made a recommendation for deportation under section 6(1) of the 1971 Act. The offender appealed to the CACD on the ground that the judge had both failed to consider the likely effect of deportation on his family and to balance properly that factor against the possibility that he might re-offend. It was argued that the rights of the offender under Article 8 of the ECHR were thereby infringed.

The appeal was dismissed. Giving the judgment of the court, Stanley Burnton J held that the offender’s Article 8 rights were not affected by the recommendation to deport, but only (possibly) by the Secretary of State’s decision: paragraph 17. He further noted that there was now a right of appeal against a deportation order by the SSHD, pursuant to section 82(2)(j) of the 2002 Act: paragraph 20. He held that where the offences justified a recommendation for deportation, there was now no need for the sentencing court to consider the impact of the recommendation on the offender’s family or to consider the offender’s rights under the ECHR, including those under Articles 2,3 or 8: paragraph 22. In the same paragraph Stanley Burnton J continued:

“It is moreover undesirable that the sentencing court should undertake an assessment for which it is not qualified or equipped, and which will in any event be undertaken by the Home Secretary and the tribunal. [The offender’s] Convention rights will be considered if the Home Secretary makes a deportation order against which the offender appeals to the tribunal. In the case of non-EU citizens, sentencing courts should consider only whether the offence committed by the offender, in the light of the information before the court, justified the conclusion that his continued presence in this country is contrary to the public interest.”

Mr Waite further submits that even if there was a failure on the part of the SSHD, there has been no “substantive unfairness”. This is because the issue of the impact of deportation on DA’s family and private life and his rights under Article 8 of the ECHR were fully considered by the decision of the tribunal chaired by Immigration Judge Woolf. It was also considered, upon reconsideration, in the determination of Senior Immigration Judge McKee: (see in particular paragraphs 6 – 8 of that determination and reasons). SIJ McKee concluded that the tribunal had not made any legal error in its assessment of the Article 8 aspects of the appeal. Accordingly, Mr Waite submits that this court should neither set aside the decision of the Secretary of State nor remit the matter to a tribunal for further consideration because it would be pointless it do so.

I wish to deal first with two preliminary matters. The first concerns section 3(5)(a), section 3(6) and section 5(1) of the 1971 Act. It is clear from the wording of those sections that if a non – British citizen is deported under those provisions, then there are actually two stages involved in the deportation process. The first concerns a non – British citizen becoming “liable to deportation”. A non – British citizen is, by section 3(5)(a), “liable to deportation” if the SSHD deems his deportation to be conducive to the public good. That must involve the SSHD making a decision that the deportation of the person concerned would be conducive to the public good. As Laws LJ put it in M v SSHD at paragraph 25, that section is a “free standing power, whose exercise is entirely within the responsibility of the executive”. By contrast, under section 3(6) a non – British citizen is liable to deportation if (in summary) he is over 17, is convicted of an imprisonable offence and has been recommended for deportation by an appropriate criminal court. The SSHD makes no decision at that stage in that case. The only decision is that of the court which recommends deportation. (I should point out that the position of citizens of EU member states is governed by Directive 64/221/EEC, which restricts the authority of member states to exclude nationals of other states; I need not go into the details here). But even if a non – British citizen has become liable to deportation, in neither case is there any decision by the SSHD at that stage to deport the non – British citizen. The decision of the SSHD to deport a person who has become “liable to deportation” by satisfying the conditions of either section 3(5)(a) or 3(6), is made by virtue of the power granted to the SSHD in section 5(1). The decision that is being attacked in this case must therefore be not the first of the SSHD’s decisions, that under section 3(5)(a), but the second one: ie. the decision to deport under section 5(1). As I have already noted, the right of appeal is from an order to deport that has been made under section 5(1).

The second matter I wish to comment on is the possible tensions in what a sentencing judge has to consider and decide on if asked to make a recommendation for deportation of an offender under sections 3(6) and 6(1) of the 1971 Act. At least since the leading decision of the CACD in R v Nazari [1980] 1 WLR 1366, judges deciding whether to recommend deportation are required to have regard to the offence(s) of the defendant, his criminal record and the likelihood of his committing further offences, in order to decide whether or not his continued presence in the UK is a potential detriment to this country. The court is not to have regard to the political systems in the country to which an offender may be deported by an order of the SSHD if a recommendation to deport is made by a sentencing judge. That is clear from the judgment of Lawton LJ in that case at page 1373. In R v Bali [2001] 2 Cr App R (S), the CACD stated that a judge considering a deportation recommendation should not take into account the possible personal difficulties that an offender might face if deported to a particular country, in that case, Kosovo. In R v Ahmed Benabbas [2006] 1 Cr App R(S) 94 (page 550), Rix LJ, giving the judgment of the court, reviewed many of the authorities on recommendations for deportation. He noted, at paragraph 37, that where the defendant’s presence in the UK is lawful and regular, the Nazari approach involves a relatively straightforward exercise. That is:

“…of balancing the aggravation of the defendant’s wrongdoing, present, past and potential against the mitigation which he can pray in aid, which includes the interests of his family. That balance may on occasion be a difficult one to find…but the test and the elements in it are plain, and, subject to the interests of the family, personal to the defendant…”.

However, some seven months after the decision in Benabbas, another division of the Court of Appeal Criminal Division gave its decision in R v Carmona [2006] 1 WLR 2264. I have already set out what it decided in paragraph 29 above. The decision in Benabbas was not cited to the court or referred to in its judgment.

The possible tension appears to me to be this: if the sentencing judge is asked to consider making a recommendation for deportation of a non – UK or non – EU citizen and he considers that, on the basis of the offender’s past criminal record, his present offences and his potential for further criminal conduct, his continued presence in the UK is detrimental, is he then obliged to disregard all other factors that are “personal” to the offender and his family (even if he has some evidence or information on them before him) and make a recommendation for deportation “on the merits”, as Laws LJ put it in M v SSHD? If he does so, then the offender becomes someone liable to be deported. The SSHD has then to consider whether to exercise his discretion to deport within the criteria laid down in Rule 364 of the Immigration Rules, which I have set out above. If the SSHD does decide to deport, that decision can only be challenged if he has not made it in accordance with those provisions, if it is otherwise lawful. The other alternative is that the sentencing judge says that although factors concerning past, present and possible future offending might suggest making a recommendation, there are other possible factors (not identified perhaps) and he does not wish to fetter the discretion of the Secretary of State. In which case the decision not to recommend deportation would probably not have been made “on the merits”.

As I understand the state of the case law at present, as articulated in paragraph 22 of Stanley Burnton J’s judgment in the CACD case of R v Carmona, the sentencing judge must (in the case of non – EU citizens) consider only matters relating to past, present and possible future offences. If that justifies a conclusion that his continued presence in the country is contrary to the public interest, he should recommend deportation. It is for the SSHD only to take account of ECHR matters and any other considerations that are personal to the offender and his family when he comes to consider whether or not to make a deportation order under section 5(1) of the 1971 Act.

Once it is made clear that the relevant decision of the SSHD is that to deport under section 5(1) of the 1971 Act, and that the sentencing judge should not take account of any matters that are personal to the offender (but not relevant to his offending, past, present or future) or his family when considering whether or not to recommend deportation, then I think that the determination of the present appeal is clear. I accept that the SSHD did not comment in either the Decision Notice or the accompanying Explanatory Letter on the fact that the judge had decided not to recommend deportation. I also accept that there is nothing in either document to suggest that the SSHD had taken into account that decision by the judge. For my part, I would be prepared to accept that if HHJ Goymer had founded his reason for not recommending deportation on matters that were relevant to the offences committed by DA, or his past criminal record, or his potential for committing further offences, then the SSHD should have dealt with those matters in either the Decision Notice or the Explanatory Letter, “however shortly”. A failure to do so in those circumstances, would, in my view, have been likely to render the decision unlawful, for the reasons set out in Laws LJ’s judgment in M v SSHD.

However, that is not the position in this case. The judge founded his reasons for not recommending deportation on issues other than the past, present and potential future criminal record of DA. They concerned DA’s family ties to his son and his mother and the rest of his family in the UK. The judge’s view on those matters was not based on evidence as such; simply on what he was told, on instructions, by defence counsel. The judge’s views on the impact of the statements made to him had no more force than those of the SSHD, who had more up to date information from more extensive sources available to her and had to consider all aspects of any relevant ECHR issues (as well as other relevant matters) that might arise. In the terms of the judgment of Laws LJ in M v SSHD, HHJ Goymer’s decision not to recommend deportation was not “on the merits”, but for reasons which were for the SSHD and not him to determine.

In my view, therefore, the SSHD was not bound to refer to and consider the views of the judge, because they were views on matters that the judge should not have taken into consideration when deciding whether or not to recommend deportation. DA had no legitimate expectation that the SSHD should take account of matters that were irrelevant to the decision of the sentencing judge when determining whether or not to recommend deportation. The SSHD’s non – consideration of the judge’s comments does not, therefore, offend notions of ordinary fairness, or the obligation to take a rational approach to the duties of good administration for the same reason.

In saying this, I have noted carefully that, in M v SSHD, two of the particular factors which led the CACD to set aside the recommendation for deportation were personal to the offender and did not concern his past, present or possible future criminal conduct – factors (c) and (d), which I have set out in paragraph 25 above. Laws LJ was clearly conscious of what the criminal court could and could not legitimately refer to when making a decision on whether to recommend deportation under section 6(1). He refers to and quotes from the judgment of Lawton LJ in R v Nazari: paragraph 21. He points out that that case pre-dated the HRA. He says, in terms that are similar to those of Stanley Burnton’s judgment in R v Carmona, that issues such as the internal conditions in a country to which a defendant’s deportation is in prospect are not matters within the criminal court’s expertise. But they are within the sphere of responsibility of the SSHD: paragraphs 22 and 23. Hence Laws LJ’s remark in paragraph 24 that the SSHD must necessarily have in mind “a larger canvass of factors than does the criminal court in approaching its task under section 6(1)”.

In paragraph 26 of M v SSHD, Laws LJ further recognised that there is an overlap between what a criminal court will have to consider when deciding whether to recommend deportation and what the SSHD will have to consider when deciding whether to make a deportation order. Again, Laws LJ foreshadows a remark of Stanley Burnton J in R v Carmona when he says that the criminal court is not equipped to pass comment on such things as “in – country conditions”. Therefore, the focus of Laws LJ’s judgment and so the decision in M v SSHD is that the SSHD must have regard to the views expressed by the criminal court on the matters that it is particularly well placed to judge; as he puts it, “…the gravity of the offence and the requirements of sentencing policy”. Thus, in my view, Laws LJ was saying that when the SSHD must consider the remarks of the criminal court on whether or not to recommend deportation, it means that the SSHD has to have regard and comment upon those matters which are within the expertise of the criminal court, but not otherwise.

What of the argument that the SSHD did not follow her own policy guidelines as laid down in the last sentence of paragraph 12.1 of the Enforcement Instructions and Guidance, quoted in paragraph 28 above? Two points should be noted. First, that paragraph seems to be directed primarily at the decision of the SSHD under section 3(5)(a) that a non – British citizen’s deportation is conducive to the public good, rather than the SSHD’s decision to deport, pursuant to section 5(1) of the 1971 Act. But, secondly, the sentence on which Mr Bazini relies must be read with the correct legal analysis in mind. Therefore, if the judge has decided not to make a recommendation for deportation for reasons which should not have borne upon his decision, there can be no obligation on the SSHD to take those into account in her consideration of the case.

Therefore, I conclude that the decision of the SSHD was lawful. There is therefore no need for me to consider Mr Waite’s alternative argument on the effect of the conclusions of the first AIT at paragraph 76 of its determination and reasons and I make no further comment about that.

I would dismiss this appeal.

I agree.

I also agree.