Reid v Secretary of state For the home department

This judgment is in five parts, namely part 1 introduction, part 2 the facts, part 3 the present appeal, part 4 the law, part 5 decision.

This is an appeal by a foreign national against an order that he be deported as a consequence of his criminal offences. In this judgment I shall use the following abbreviations. I shall refer to the Immigration Act 1971 as “the 1971 Act”; I shall refer to the UK Borders Act 2007 as “the 2007 Act”; I shall refer to the European Convention on Human Rights as “ECHR”; I shall refer to the Asylum and Immigration Tribunal as “AIT”.

The statutory provisions relevant to this appeal are contained in the 1971 Act and 2007 Act. Section 3 of the 1971 Act provides:

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

Section 3 (5) (a): “the Secretary of State deems his deportation to be conducive to the public good.”

Then subsection 6 provides an alternative route to deportation where a court upon conviction makes a recommendation for deportation.

Section 32 of the 2007 Act provides:

“(1)

In this section “foreign criminal” means a person --

(a)

who is not a British citizen,

(b)

who is convicted in the United Kingdom of an offence, and

(c)

to whom Condition 1 or 2 applies.

(2)

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3)

Condition 2 is that --

(a)

the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and

(b)

the person is sentenced to a period of imprisonment.

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal.”

Section 33 of the 2007 Act provides:

“(1)

Section 32(4) and (5) --

(a)

do not apply where an exception in this section applies (subject to subsection (7) below), and

(b)

are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

(2)

Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach --

(a)

a person’s Convention rights, or

(b)

the United Kingdom’s obligations under the Refugee Convention.”

After these introductory remarks I must now turn to the facts.

The appellant is a citizen of Jamaica, now aged 42, who has lived in the United Kingdom for nine-and-a-half years. He arrived in the UK on 25 June 2000 and was granted six months leave to enter. On 18 November 2000 the appellant married Karen Proctor, a British citizen, as a result of which he was in due course granted indefinite leave to remain. Since settling in the UK the appellant has had two daughters, one by his wife and one by another woman whose name I do not know.

Unfortunately, having made his home in this country, the appellant did not lead a law-abiding life. On 30 August 2004 the appellant was convicted of affray and sentenced to six months’ imprisonment. Following that conviction and sentence, the Secretary of State considered whether or not deportation of the appellant would be conducive to the public good under Section 35 of the 1971 Act. At that stage the Secretary of State decided not to proceed with deportation. He did, however, cause a warning letter to be sent to the appellant; that letter was sent by an official at the Home Office Immigration and Nationality Department. It is dated 12 January 2005; it informs the appellant of the serious view taken of his conviction; it informs the appellant that consideration was given to his deportation, but in the circumstances the Secretary of State was not at that stage proceeding with deportation. The final sentence of that letter reads as follows:

“I should warn you therefore that, if you should come to adverse notice in the future, the Home Office will be obliged to give further consideration to the question of whether you should be deported”

Most unfortunately, the appellant did not heed the warning that was given in that letter. With full knowledge that he was risking deportation (because he had been so advised expressly) the appellant went on to commit further very serious offences. On 20 June 2008 (some three-and-a-half years after his release from prison) the appellant was back in the Birmingham Crown Court. On this occasion he pleaded guilty to three counts of supplying class A drugs.

On 30 July 2008 Mr Recorder Mainds sentenced the appellant to two-and-a-half years’ imprisonment, describing his offences as "very serious". The imposition of this sentence triggered the operation of Section 32 of the 2007 Act. The appellant became liable to automatic deportation unless one of the exceptions in Section 33 applied. On 11 August 2008 the Secretary of State sent a letter to the appellant informing him of his liability to deportation and inviting representations. The appellant's solicitor duly submitted representations on the appellant's behalf by letter dated 14 November 2008. In a nutshell, the solicitors asserted that the appellant had a right to remain in the UK under ECHR Article 8.

The Secretary of State considered those representations but was not persuaded by them. On 14 January 2009 the Secretary of State made a deportation order against the appellant pursuant to Section 32(5) of the 2007 Act. The appellant appealed against the Secretary of State's decision to the AIT on human rights grounds. The grounds of appeal were essentially as follows. The appellant said that the discretion under the Immigration Rules should have been exercised differently and the decision was not in accordance with the law and the Human Rights Act 1998; in particular the appellant said that his Article 8 rights would be breached because of his close family ties in the UK. He could not return to Jamaica because it would not be safe to do so as a result of the murder of his siblings in Jamaica.

Immigration Judge Kahn heard the appellant's appeal in Birmingham on 31 March 2009. The Immigration Judge heard evidence from the appellant and his wife and from a number of other witnesses as well. On 7 April 2009 the Immigration Judge promulgated his decision dismissing the appellant's appeal. The Immigration Judge's essential reasoning was as follows. He rejected the appellant's evidence as untrue that the appellant's siblings had been murdered in Jamaica; he concluded that there would not be any real risk to the appellant upon his return to Jamaica. In relation to the Article 8 claim, the Immigration Judge accepted that the appellant had the right to respect to a family life in the UK under Article 8.1 of ECHR. He then proceeded to consider the effect of Article 8.2. He carried out the balancing exercise which was required by that provision. He came to the conclusion that the interference with the appellant's right to a private and family life in the United Kingdom by deporting him to Jamaica would be justified under ECHR Article 8.2.

In relation to the Article 8 issues the reasoning of the Immigration Judge is set out very fully in paragraphs 30 to 43 of his decision. The Immigration Judge referred to the test set out by the House of Lords in Rasgar [2004] UKHL 27. He also referred to the guidance given by the House of Lords in Huang [2007] UKHL 11. He noted that he must take into account the effect not only on the appellant but also on the other members of his family. In that regard he was adhering to the decision of the House of Lords in Beoku-Betts v SSHD [2008] UKHL 39. He then reviewed a number of other authorities on the operation of Article 8 in this context and he noted that in conducting his balancing exercise he should take into account the judge's sentencing remarks at the time the appellant was sentenced for the more recent offences.

The Immigration Judge set out certain guidance given by the Court of Appeal in a case called OH (Serbia) v. SSHD [2008] EWCA Civ 694, to which I shall revert later.

In relation to the risk of reoffending I shall read out what the Immigration Judge said because that is directly relevant to one of the arguments advanced today:

A little later in his consideration of the Article 8 issues the Immigration Judge said this at paragraph 40:

“Whilst I take into account that the Appellant has established a family life in the UK and also a private life, even though his wife may have been away on occasions to look after her sick mother in Manchester and that a single person’s discount was claimed for council tax for the year 2006/07, and that the Appellant is taking his daughter [K] to and from school and that there are numerous letters in support from various members of the family and friends, nevertheless I find that the public interest requires deportation and that it would therefore be proportionate for the Appellant to be removed to Jamaica because of the seriousness of his offending behaviour.

41.

Having said that, I have also taken into account the decision in Beoku-Betts in that the Appellant's deportation will have an adverse effect upon his wife and children. Although he does not see the child from an earlier relationship on a regular basis, I find that there is still some contact from time to time. I also find that the Appellant has a close relationship with his step-children. Nevertheless, despite the fact that there would be a break up of family life and that the Appellant's wife and children would not be able to live with him in Jamaica, communication can be maintained by other means. It is also true to say that despite the Appellant's claim that he was a regular church attender and family man, he well knew that by his actions in selling crack cocaine on the streets, he was liable to be apprehended which was the case and this resulted in a custodial sentence and the Respondent's decision to deport. The Appellant therefore took the risk regarding the consequences of his actions of knowing full well what it might ultimately mean for him and indeed for his wife and children and other wider members of the family. It is also an admitted fact that the Appellant had been convicted of an offence of affray in 2004 for which he was given six months’ imprisonment and he was warned by the Respondent that any further offences would result in deportation. The Appellant chose to ignore this warning and went on to commit a much more serious offence. Removal to Jamaica is proportionate in all the circumstances, despite the affect it would have on the family.”

The appellant did not agree with that decision and he applied to the AIT for reconsideration. That reconsideration was duly carried out by Senior Immigration Judge King who confirmed the original decision of Immigration Judge Carr. The appellant was aggrieved by the respective decisions of the AIT to dismiss the appeal from the Secretary of State's decision and to uphold such dismissal. Accordingly, the appellant commenced the present appeal.

By a notice of appeal dated 9 September 2009 the appellant appealed to this court against the decision of the AIT on five grounds. As originally formulated, those five grounds tended to merge together and flitted to some extent between the decisions of the Immigration Judge and the Senior Immigration Judge. Accordingly, the appellant's counsel in his skeleton argument, served some three weeks after the notice of appeal, very helpfully refined those five grounds and focussed his submissions much more tightly upon the decision of the Immigration Judge rather than the Senior Immigration Judge.

The first ground was, in essence, that there was a failure by the Immigration Judge to take into consideration the duration of the exclusion from the United Kingdom which the appellant would face when the Immigration Judge was considering proportionality under Article 8.2. The second ground of appeal was that the Immigration Judge erred in taking the gravity of the offence as being the predominant factor and which the Immigration Judge found as outweighing the other factors in reaching his findings on proportionality. The third ground was that the Immigration Judge erred in failing properly to weigh the appellant's future risk of reoffending in determining whether a fair balance had been struck between the competing interests; that is, the competing interests of family life and public life.

I need not refer to the fourth ground advanced in the skeleton argument because, in his submissions this morning, Mr Ahmed on behalf of the appellant really merged ground 4 with ground 2 and treated his submissions under what was ground 4 as being subsidiary to ground 2.

So those are ultimately the three separate grounds of appeal which have been advanced.

By an order dated 6 October 2009 Sir Richard Buxton granted permission to appeal but stated that he did so with considerable hesitation. That appeal has been advanced this morning by Mr Nazir Ahmed on behalf of the appellant. Counsel for the respondent was not, in the event, called upon.

Before I address the three grounds of appeal as they have been developed this morning I must first turn to the law.

Article 8 of ECHR provides:

“1.

Everyone has the right for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

One issue of common occurrence is the extent to which Article 8 protects from deportation foreign nationals who commit criminal offences after settling in a country. Under UK legislation that question now arises when the Secretary of State is making decisions under Sections 32 and 33 of the 2007 Act before the 2007 was enacted. That question also arose when the Secretary of State was making decisions under Section 3 of the 1971 Act.

Similar questions arise under the legislation of other states which subscribe to ECHR. Therefore the Strasbourg court has on a number of occasions considered this same question.

In Uner v Netherlands [2007] 45 EHRR 14 the Strasbourg court summarised the principles applicable in a case of deportation on the grounds of criminal offending. I shall not set out the whole of that summary, though I take it into account, but I shall quote the first part. The court stated at paragraph 54:

“The Court reaffirms at the outset that a State is entitled, as a matter of international law and subject to its treaty obligations, to control the entry of aliens into its territory and their residence their [...] The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under para 1 of art 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued ...”

In the first part of paragraph 55 the court stated:

This passage and the following paragraphs have been relied upon by the Strasbourg court in a number of later decisions. Within England and Wales there is a large body of authority about the operation of Article 8 both in relation to Section 3 of the 1971 Act and, more recently, Section 33 of the 2007 Act. The Article 8 principles are, of course, the same whichever statute is applicable at any given time.

I shall refer at this stage to just two of those authorities. In N (Kenya) v SSHD [2004] EWCA Civ 1094 the Immigration Appeal Tribunal allowed the Secretary of State's appeal against an adjudicator's decision that N should not be deported. The Court of Appeal upheld that decision. May LJ giving the first judgment stated as follows:

In OH (Serbia) v SSHD [2008] EWCA Civ 694 the Court of Appeal dismissed OH's appeal against a decision that he should be deported. Wilson LJ summarised the relevant principles as follows at paragraph 15:

“(a)

The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.

(b)

Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.

(c)

A further important facet is the role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.

(d)

Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal’s duty in this regard as being higher than ‘to weigh’ this feature.”

Wilson LJ then went on to express his regret at the fact that the principles established both by the courts and under the Convention drove him to the conclusion that OH's appeal should be dismissed.

Having reviewed some of the relevant authorities, I must now turn to the grounds of appeal and give my decision on those grounds.

At an early stage of the hearing today I raised the question of to what extent we were considering the Immigration Judge's decision and to what extent we were considering the Senior Immigration Judge's decision. The President of the Queen's Bench Division pointed out that the Senior Immigration Judge had concluded that there was no error of law by the Immigration Judge and therefore, although this is an appeal against the Senior Immigration Judge's decision, the real focus of attention is upon the question whether or not he was right in concluding that there was no error of law by the Immigration Judge and that takes us back to the decision of the Immigration Judge.

Mr Ahmed, on behalf of the appellant, accepted that analysis; indeed, both his skeleton argument and his oral submissions have been primarily focussed upon the reasoning of the Immigration Judge and I shall therefore follow suit in this judgment.

Let me start with the first ground of appeal. Mr Ahmed submits that the duration of the appellant's exclusion from this country which will follow any deportation is a relevant factor and it must be taken into account. In support of that decision Mr Ahmed relied upon a number of authorities, in particular he took the court to paragraph 27 of the judgment of Moore-Bick LJ in AS (Pakistan) v SSHD [2008] EWCA Civ 1118; paragraph 48 of the judgment of the European Court of Human Rights in Kahn v United Kingdom [2010] ECHR 47486/06; paragraph 102 of the judgment of the European Court of Human Rights in Maslov v Austria [2008] ECHR 1638/03; paragraph 37 of the European Court of Human Rights decision in Radovanovic v Austria 22 April 2004.

For my part, I accept the proposition which Mr Ahmed puts forward: it is well established both as a matter of principle and on the authorities which he cited to us this morning. The duration of the appellant's exclusion in this case will be governed by Rule 391 of the Immigration Rules. That rule was amended some two years ago and it is now divided into two limbs. It is common ground between counsel that limb 1 of Rule 391 is applicable in this case; accordingly, although the Secretary of State will have a discretion, the deportation order to be made if this appeal fails is unlikely to be revoked before a period of ten years has elapsed.

Mr Ahmed submits that the Immigration Judge did not take this factor into account. I do not accept that submission. I do accept that, in some of the cases which followed the amendment of Rule 391, courts or tribunals observed that the rule had been amended and the duration of exclusion would be longer, but as time elapsed there was no expectation that judges or immigration judges would go on for ever referring to the amendment to rule 391. It is a fact which is common knowledge amongst immigration judges and those who are concerned with these matters. Furthermore, when one reads the immigration judge's decision, in particular the passages which I quoted in part 2 of this judgment, it can be seen that the Immigration Judge had well in mind the fact that deportation would result in a lengthy period of separation of the appellant from the other members of his family.

At one point in his submissions Mr Ahmed appeared to be submitting that the Immigration Judge thought that the duration would only be three years, but my impression from the dialogue which followed was that Mr Ahmed did not really press that point; he was saying, “well, one does not know what assumption the Immigration Judge was making”. It seems to me plain from the Immigration Rules and from the full tenor of the Immigration Judge's decision that he had well in mind that the deportation order, if made, was unlikely to be revoked for a period in the region of ten years.

Therefore I have come to the conclusion that the Immigration Judge took this factor into account and I reject the first ground of appeal.

I turn now to the second ground of appeal. This is, in essence, a criticism of the balancing exercise which the Immigration Judge carried out. What Mr Ahmed argues, both in his skeleton argument and orally, is that the Immigration Judge attached too much weight to the seriousness of the offence, for which the appellant was sentenced to two-and-a-half years’ imprisonment, or rather the offences for which the appellant was sentenced to two-and-a-half years’ imprisonment, and the Immigration Judge attached too little weight to the other positive factors which weighed in the appellant's favour. These are factors such as the duration of time that the appellant has spent in this country; the fact that he had a wife and children here, with one of which children the appellant was living. Mr Ahmed submits that the Immigration Judge took insufficient account of the wider family members of the appellant who are living in this country and so forth.

First of all, it must be said that all of the factors of this nature, the positive factors which Mr Ahmed says were insufficiently taken into account, were all mentioned in the reasoned decision of the Immigration Judge. This is not an argument that matters were ignored; it is an argument that insufficient weight was given to some matters and excessive weight was given to other matters.

There are two problems with this submission. The first problem is that matters of weight are for the first instance court or tribunal. This court will not intervene unless the first instance court or tribunal has attached a degree of weight to factors which it could not reasonably attach, or alternatively the tribunal has attached so little weight to particular factors that it could not properly take that view. I simply do not think that this case falls into that category; the degree of weight which the Immigration Judge attached to both positive and negative factors reflects a perfectly possible and reasonable approach to the material in this case.

Mr Ahmed supported his argument on the second ground by drawing our attention to a number of reported decisions in which foreign nationals were deported following much more serious offences, as he submitted, than the offences which the appellant committed in this case. It is, of course, an unhelpful exercise to compare too closely the facts of the one case with another. This court is concerned with legal principles and whether the first instance tribunal applied those principles correctly. For my part, I do accept that in some of the cases which Mr Ahmed cited to us the offences which the deportee had committed were more serious and the prison sentences imposed were longer. On the other hand, this case has a special feature which is absent in those other cases. In this case the appellant committed an earlier serious offence and, following that offence, the appellant received a warning letter the terms of which I have read out. That letter put the appellant on notice that he was risking deportation and separation from his family members if he reoffended again. It is a tragedy that the appellant did not heed this warning, but the fact is that he did not do so and the Immigration Judge was in my view quite entitled to attach (as he did attach) weight to the fact that the appellant ignored the warning. It will be recalled that the Immigration Judge dealt with this matter in paragraph 41 of his decision.

In relation to ground 2, Mr Ahmed deployed what had been ground 4 in his original notice of appeal and skeleton argument. That ground is, in essence, that too much reliance was placed on the decision of the Court of Appeal in DS ( India ) v SSHD [2009] EWCA Civ 544. So far as that point is concerned, it should be noted that the decision in DS (India) postdates the determination of the Immigration Judge in this case and therefore it does not feature at all in the reasoning of the Immigration Judge. It is quite true that the Senior Immigration Judge did refer to the decision of the Court of Appeal in DS (India) in the latter part of his decision on reconsideration. I do not, however, accept that the Senior Immigration Judge misapplied that decision or attached too much weight to that case, accepting, of course, that the facts of DS (India), like the facts of every other case cited to us, differ in some respects from the facts of the present case. It seems to me that nothing which the Senior Immigration Judge said about DS (India) can possibly affect the decision that he was right to conclude that there was no error of law on the part of the Immigration Judge.

Weighing up all these matters, I have come to the conclusion that the appellant cannot succeed on ground 2.

The third ground of appeal is that the Immigration Judge erred in failing properly to weigh the appellant's future risk of reoffending in determining whether a fair balance had been struck between the competing interests. It will be recalled from Part 2 of this judgment that the Immigration Judge dealt with the risk of reoffending in paragraph 37 of his decision. The first sentence of that paragraph is quite clearly based upon and echoing a letter from the probation officer which was placed before the AIT in which the Immigration Officer reviewed the progress of the appellant since release from prison. The Immigration Officer noted the supervision sessions which the appellant had attended and the probation officer concluded expressing the hope that the appellant would continue to successfully complete his order with a very positive outcome.

In his oral submissions this morning Mr Ahmed very fairly did not suggest that this was one of those cases where the risk of reoffending was minimal. Looking at the way the Immigration Judge put it, and looking at the probation service letter which the Immigration Judge was referring to, Mr Ahmed said that the risk of reoffending in this case was low or medium.

It seems to me that the Immigration Judge fully took into account the low level of the risk of reoffending. As I say, it was not a non-existent risk but the risk was not a high one; the Immigration Judge took that into account and the Immigration Judge attached appropriate weight to it. This is not a factor of any great assistance to the appellant. See the reasoning of this court in N (Kenya) and OH (Serbia), in particular the passages which I read out in Part 4 of this judgment.

Let me now draw the threads together. The appellant fails, in my view, on each of his three grounds of appeal. The Immigration Judge carefully weighed all of the competing factors and he concluded that the Secretary of State's decision that the appellant be deported should stand. The Secretary of State's decision is itself a relevant factor for the reasons stated by this court in N (Kenya) and OH (Serbia). For my part, I am unable to detect any error of law in the reasoning of the Immigration Judge or indeed in the reasoning of the Senior Immigration Judge. In my view, the Senior Immigration Judge on reconsideration came to the right conclusion, namely that the Immigration Judge's decision should be confirmed and that there was no error of law within it.

For all of these reasons, in my judgment this appeal should be dismissed.

I agree.

I agree that this appeal should be dismissed for the reasons which Jackson LJ has given. I wish to make just three short points. First, although the Immigration Judge did not specifically refer to a period of time which would necessary now have to pass before consideration might be given to the appellant's return to this country, it is quite evident that his decision proceeded on the basis that the appellant would be excluded from the United Kingdom for a long period. Second, the Immigration Judge expressly took all the important balancing matters into account; this means that a submission that he failed to give sufficient weight to mitigating matters has to contend that the Immigration Judge's balancing judgment was plainly wrong on a rational approach to the facts. Agreeing as I do, with Jackson LJ, I do not consider that this submission can properly be maintained; in particular the offences of which the appellant had been convicted were serious and he had been warned after the first offence that he risked deportation if he offended again. Third, it is simply not correct that the Immigration Judge did not properly take into account the reasonable assessment in the evidence of the risk of the appellant reoffending. Reference to the determination shows that the Immigration Judge did take this matter properly into account. The risk of reoffending is one factor in the balancing judgment, but in cases of serious offending not the most important (see the authorities of N (Kenya) and OH (Serbia) to which Jackson LJ has referred).

Accordingly, the appeal is dismissed.