AP (Trinidad & Tobago) v Secretary of State for the Home Department

This appeal relates to AP a foreign criminal convicted of a drug offence and sentenced to 18 months imprisonment.

Before August 2008, decisions to deport persons whose presence was not “conducive to the public good” were made by Secretary of State for the Home Department pursuant to section 3(5)(a) of the Immigration Act 1971 and paragraph 364 of the Immigration Rules. Secretaries of State commonly notified persons who committed criminal offences and were not citizens of the United Kingdom that he or she intended to deport them and they then made deportation orders. Both the notification and the order itself were challengeable on ordinary public law principles and a body of case-law grew up in relation to the exercise of the Secretary of State’s discretion and, in particular, the matters which paragraph 364 of the Immigration Rules required the Secretary of State to take into account. Moreover para 380 of the Immigration Rules provided that a deportation order would not be made against a person if his removal would be contrary to either the Refugee Convention or the Human Rights Convention. Article 8 of the Human Rights Convention relating to a person’s private and family life was, therefore, an important consideration.

The leading case in relation to foreign criminals was N (Kenya) v SSHD [2004] EWCA Civ 1094 in which both May and Judge LJJ gave substantial judgments (Sedley LJ dissented). In the later case of OH (Serbia) v SSHD [2008] EWCA Civ 694 Wilson LJ (with whom Maurice Kay and Pill LJJ agreed) collected the following propositions from N (Kenya):-

“(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 that “to weigh” this feature.”

In 2007 Parliament enacted the UK Borders Act which made specific provisions in relation to foreign criminals. To the extent of those provisions, as the Upper Tribunal has put it, in SSHD V MK [2010] UKUT 281 (IAC)

“legislative policy has occupied what was formerly the field of executive policy.”

The relevant provisions of this Act (“the 2007 Act”) came into force on 1^st August 2008 and provided:-

“32 Automatic Deportation

(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 (c41) (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 (c77), the deportation of a foreign criminal is conductive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6)

The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless –

(a)

he thinks that an exception under section 33 applies,

(b)

the application for revocation is made while the foreign criminal is outside the United Kingdom, or

(c)

section 34(4) applies.

(7)

Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.

33 Exceptions

(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 section 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 ….

In the present case Senior Immigration Judge Chalkley, on the application of the Secretary of State, ordered a reconsideration of an original AIT determination of 11^th March 2009 because he considered that that first tribunal had made an error of law in not sufficiently taking into consideration the matters which N (Kenya) and OH (Serbia) required tribunals to take into account. Accordingly the AIT made a second (fresh) determination which upheld the Secretary of State’s original decision. Mr Chirico on behalf of AP submits that Senior Immigration Judge Chalkley was wrong to have found an error of law in the determination of the first Tribunal and that, even if he was right, the second determination is legally flawed. Ms Patry Hoskins submits that Senior Immigration Judge Chalkley was right to have found an error of law and that there was no error of law in the second determination which must accordingly stand. She did not submit that the change from executive policy to legislative policy enshrined in the 2007 Act in any way changed the nature of an appeal to the Tribunal in relation to a foreign criminal; her submission was that the matters set out in N (Kenya) and OH (Serbia) were still relevant but had not been properly taken into account by the first tribunal.

AP was born in Trinidad on 11^th November 1987. It is thought by the Home Office that he entered the United Kingdom in 1991 before or about his fourth birthday but there is no record of that fact. His mother was already here (having overstayed after a permitted entry for 1 month as a visitor to attend an engagement party for her niece) but it seems she did not promptly seek to regularise AP’s immigration status or, indeed, her own or that of AP’s brother Hakim or his sisters Symone and Shantelle. But regularise it she did, because she and her children were given indefinite leave to remain sometime in 2000.

By that time AP was at school but he did not enjoy school and got into fights with other students. He subsequently told his probation officer that he felt stereotyped as a trouble-maker. Nevertheless he obtained 5 GCSE’s.

He committed his first substantial offence, the crime of common assault, on 12^th May 2006 when he was 18 for which he was, on 2^nd November 2006, given a community sentence of 12 months and made subject to a curfew order. While awaiting trial he was, on 28^th October 2006, found to be in possession of cocaine for which he was fined. A daughter Reinaya was born to his then partner Miss C on 22^nd June 2007. While the community sentence was still operative on 5^th August 2007 he committed further offences of battery against his partner and destruction of property for which he was on 31^st October sentenced to another community sentence by Camberwell Magistrates. He later committed a breach of that order and as a result the Magistrates on 11^th February 2008 imposed a sentence of imprisonment of 10 weeks but suspended that sentence for a period of 24 months.

Within days of the imposition of that suspended sentence and against the background of the breaches of his previous community orders, AP was again found to be in possession of cocaine but this time, as he later admitted in court after initial denials, he intended to supply it to others. Indeed he and a friend had gone from London to Ipswich for that specific purpose. He pleaded guilty to that offence on 30^th May 2008 at Ipswich Crown Court and on 1^st July 2008 HHJ Goodin sentenced AP to 18 months imprisonment in a Young Offenders Institution and activated the suspended sentence of 10 weeks to be served concurrently saying to AP:-

“You as I say have previous convictions, two of them, but really one of significance for possession of drugs, certainly none for supply, but you committed this offence within days of the imposition of a suspended sentence of imprisonment and against the background of persistent breaches, it seems to me, of the alternatives to custody, but I am mindful that there may have been some progress in your life because of progress in your attitude towards offending.”

The Secretary of State considered it to be conducive to the public good to make a deportation order in respect of AP and on 15^th October 2008 intimated an intention to deport AP to Trinidad. On 17^th December 2008, she also invoked section 32 of the 2007 Act and made a deportation order on the basis that AP was a “foreign criminal” who was liable to automatic deportation and that such removal did not, in her view, constitute a disproportionate interference with AP’s rights to private and family life.

On 8^th January 2009 AP was released on licence and gave notice of appeal against both the decision of 15^th October 2008 to make a deportation order and the order of “automatic deportation” under the 2007 Act made on 17^th December. On 6^th February 2009 he made a statement for the tribunal saying he was getting his life on track and that he was extremely remorseful. Nevertheless two days later he was again found to be in possession of cocaine for which he was fined £75.00 by Highbury Corner Magistrates Court on 9^th February 2009.

His appeal was heard the next day 10^th February and on 11^th March 2009 Immigration Judge Drummond Farrell and Mr Cragg promulgated the first determination, which was in AP’s favour. This decision set out (in para 31) a number of aspects legally relevant to the proportionality of deportation namely (a) the risk of re-offending (b) the need to deter foreign nationals from committing serious crimes (c) the expression of society’s revulsion and (d) the approach adopted by the Secretary of State who had primary responsibility for the public interest. The tribunal then proceeded:-

“36.

… We note the early age of the appellant when he came to this country and the fact that he has spent seventeen years in this country. We note too that he has close family in this country including his mother, sisters, brother, cousin, nieces and nephews, uncle and aunt. Although his relationship with his former partner is not the same as husband and wife any longer, he is devoted to his daughter and we have heard evidence from his former partner (who was very truthful in stating that she no longer was in a relationship with the appellant) that he was a good caring father. We note the impressive number of certificates which the appellant has gained. We also note the judgment particularly in Beoku-Betts v Secretary of State for the Home Department [2008] and we are satisfied that the effect of his proposed removal on all members of his family unit in the UK would result in removal being disproportionate, especially since he has a child who has a strong bond with him and he with her and we have heard credible evidence that he is a good and caring father. In terms of the effect of violence to his former partner, they appear to be on good terms. The violence was, without wishing to undermine its importance, not such that would be so threatening as to outweigh other aspects of his case. He is now not living with his partner and therefore any threat is minimised and certainly it is clear that there is no threat to his daughter.

37.

The appellant appears to be very remorseful of his crimes and indeed there is no evidence at all that he has resorted back to drug taking, pushing or possessing. Indeed we have scanned the probation report and there is very little, if anything, on the risk of returning to his drug offences.

38.

We therefore find, in striking a fair balance between the rights of the individual and the interests of the community, that our assessment of proportionality is that a decision to remove the appellant is in all the circumstances not proportionate and we allow this appeal under Article 8 of the ECHR.”

The Secretary of State on 26^th March 2009 obtained an order for reconsideration from Senior Immigration Judge McGeachy on the basis that the Tribunal might not have properly adopted the approach laid down by this court in N (Kenya) and OH (Serbia) v SSHD

The first stage reconsideration was conducted by Senior Immigration Judge Chalkley who on 13^th May 2009 decided that, although the first Tribunal had in para 31 reminded itself of the matters it had to take into consideration, it had not demonstrated that it had taken them into account when it reached its conclusion in paras 36-38 of the determination. There was accordingly an error of law and he therefore adjourned the case to a second stage reconsideration for that account to be taken and for consideration of AP’s Article 8 rights in that correct context. Although Senior Immigration Judge Chalkley did not expressly adjourn for reconsideration in December 2008 the decision in relation to automatic deportation under the 2007 Act, the second stage reconsideration appeal treated both the October and December decisions as being before it.

AP committed the further offence of battery on 13^th July 2009 and as a result his licence was revoked on 27^th July 2009. He returned to prison and on 1^st October 2009 received a sentence of 26 weeks imprisonment for that offence.

AP came out of prison to give evidence on 18^th December 2009 to the second stage reconsideration tribunal consisting of Immigration Judge Bennett and Mr D. R. Bremmer JP. On 18^th January 2009 they concluded first that neither AP nor his mother (who gave evidence on his behalf) could be considered to be reliable witnesses. Secondly that his relationship with Miss C no longer existed but that, when AP was not in prison, he did from time to time see his daughter Reinaya. He did not provide care for her, however, nor provide any funds for her maintenance. They were further satisfied he had relatives in Trinidad. He had had a relationship with a Miss D since some time in 2009. They then gave 9 separate reasons for saying they were not satisfied that the removal of AP to Trinidad would involve a disproportionate interference with his rights to private and family life or the rights of other members of his family including his daughter, when set against the interest of the prevention of crime and the protection of the rights and freedom of others. They accordingly dismissed both of AP’s appeals.

At some later date AP committed the further offence of inflicting grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861. He was still to be sentenced at the date of the hearing before us but both parties agreed that this regrettable development was immaterial for us to have in mind.

There are two grounds of appeal for which permission has been given by my Lord, Carnwath LJ:-

Mr Chirico for AP contended that the first tribunal had in para 31 set out the relevant considerations required by OH (Serbia) more or less verbatim, they had accordingly directed themselves correctly and there could be no error of law, unless it could be argued that the decision was perverse.

Ms Patry Hoskins did not submit that the second determination was perverse. But she did contend that Senior Immigration Judge Chalkley was correct to have held that when the first tribunal came to the point of decision it did not sufficiently or at all weigh the public interest considerations set out in OH (Serbia) against the Article 8 rights of the appellant and had therefore committed an error of law.

There is no doubt that, although the first determination did not refer expressly to the decisions of this court in N (Kenya) and OH (Serbia), they had the considerations, which those authorities required the tribunal to take into account, very much in mind. Para 31 set out those considerations in the same language as that used in OH (Serbia) and when the tribunal came to the point of decision in para 38 they in terms attempted to “strike a fair balance between the rights of the individual and the interests of the community”. Not only, therefore, did they direct themselves correctly as a matter of law but there is no reason to suppose that they had forgotten that direction when they came to their conclusion 7 paragraphs later. It seems to me, therefore, that their decision could not be lawfully attacked unless it could be said that the decision was perverse.

But Senior Immigration Judge Chalkley did not go so far as to categorise the decision as perverse nor did Ms Patry Hoskins submit to us that it was. Indeed she expressly said that she did not so submit. That is plainly correct. Decisions weighing the public interest in deportation against the private interest of the appellant and his family in his private and family life are often difficult and cannot easily be categorised as perverse. Perversity was indeed the ground of decision in N (Kenya) where both the Immigration Appeal Tribunal and this court did decide that an adjudicator’s decision (to allow an appeal by N against a deportation order when he had arrived in the United Kingdom at the age of 19 and shortly thereafter committed three offences of rape and offences of abduction and false imprisonment) resulting in a sentence of 11 years imprisonment, was indeed perverse, see para 65 per May LJ and paras 90 and 94 per Judge LJ, a factor made much of by Sedley LJ in his dissenting judgment, see paras 68 and 77-78. The first determination in the present case comes nowhere near the facts of N (Kenya) and Ms Patry Hoskins was right to recognise that fact.

The Supreme Court has recently reminded this court that we should not be astute to characterise as an error of law what is no more than a disagreement with the AIT’s assessment of the facts. That was in MA (Somalia) v SSHD [2010] UKSC 49 [2011] 2 ALL E.R. 65, in which the AIT had correctly directed itself on the law as to the consequence of an appellant telling lies but this court then found that they had failed to follow their own direction set out only four paragraphs earlier (see para 46 of Sir John Dyson’s judgment). The facts of this case are very similar save that the conclusion is seven paragraphs removed from the direction rather than four.

In coming to his conclusion Sir John Dyson relied on the well-known dictum of Baroness Hale of Richmond in AH (Sudan) v SSHD [2007] UKHL 49, [2008] 1 AC 678 at para 30 that the AIT is an expert tribunal and it is probable that, in applying the law in their specialised field, the Tribunal will have got it right. Ms Patry Hoskins likewise sought to rely on this dictum before us. But as Wilson LJ pointed out in OH (Serbia) para 19 it is an impossible dictum to apply when a second expert tribunal has detected an error of law in the approach of a first specialist tribunal; which tribunal is the one that probably got it right? Ms Patry Hoskins submitted it was the second one but my resolution of this conundrum is to say that the ordinary courts of law are normally as expert as specialist tribunals in detecting whether decisions are vitiated by errors of law and, at any rate in cases where there are two decisions, should make up its own mind according this court’s usual respect to the tribunal from which the appeal lies.

This may become particularly important now that there are two tiers of tribunals. If the Upper Tribunal reverses a conclusion of a first tier tribunal because it has found that there is an error of law in the determination of that tribunal, this court will have to make up its own mind on the matter. If, of course, both tribunals have come to the same conclusion, not only will an appeal be rare but it will, no doubt, be even rarer for concurrent conclusions to be reversed.

I fear therefore that I disagree with Senior Immigration Judge Chalkley and would say that the first determination was not vitiated by any error of law. It follows that the second determination (however rational it may be) cannot be allowed to stand. There is no need to consider the second ground of appeal. I would allow this appeal.

I agree that, on the arguments as presented to us, the appeal must be allowed.

Under the AIT procedure, reconsideration could only be ordered if the first decision was found to be materially erroneous in law. The principles underlying that trite proposition have been restated recently by Sir John Dyson SCJ in MA(Somalia) (cited above):

“…The role of the court is to correct errors of law. Examples of such errors include misinterpreting the ECHR (or in a refugee case, the Refugee Convention or the Qualification Directive); misdirecting themselves by propounding the wrong test on some legal question such as the burden or standard of proof; procedural impropriety such as a breach of the rules of natural justice; and the familiar errors of omitting a relevant factor or taking into account an irrelevant factor or reaching a conclusion on the facts which is irrational.

But the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AIT's assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account.” (para 44-5)

In this case, the alleged error of law arises from the first panel’s consideration of Wilson LJ’s four “propositions” in OH (Serbia), as derived from N (Kenya) (see para 3 above). There is no dispute that, although they did not refer to the cases by name, they directed themselves correctly as to their effect:

“…In terms of proportionality, we consider various aspects including the risk of re-offending, 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, the expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes. We remind ourselves that primary responsibility for the public interest resides in the respondent and a Tribunal hearing an appeal against the 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.” (para 31)

They also referred to the “very serious” nature of the crime (para 32).

When ordering reconsideration, SIJ Chalkley identified the error of law as follows:

“Whilst the Tribunal of the matters it must take into consideration in considering the question of proportionality at paragraph 31 of its determination, it has not demonstrated in reaching its conclusions that it did take those matters into consideration…

…I believe that the Tribunal did err in its consideration of the question of proportionality by failing to properly have regard to and apply the decisions of the Court of Appeal in N (Kenya) and OH (Serbia)” (paras 12 and 13).

As I read that passage, it contains two separate criticisms of the first panel: first, failure to “demonstrate” in its reasons how it had applied the relevant guidance; secondly, failure “properly to apply” the guidance.

The first appears to be a challenge to the reasons, the second to the substance. Neither in my view stands up to scrutiny. As to the first, there is no doubt about the tribunal’s reasons. It thought that the OH (Serbia) factors, and the seriousness of the crime were on balance outweighed by personal factors, including their assessment of the risk of re-offending (para 35-7). The second criticism begs the question whether “proper” means anything more than “rational”, and if so on what legal basis. As Sir John Dyson’s summary makes clear, provided that tribunal acts fairly and directs itself correctly in law, and provided the relevant considerations are taken into account, the only possible ground of challenge is irrationality.

In this court Ms Patry Hoskins, for the Secretary of State, asserts not that the tribunal failed to direct itself in accordance with the correct principles, nor that the decision was irrational; but that in the determination it failed to have regard all relevant considerations. As she put it in her skeleton:

“Paragraph 31 set out the bare principles of OH. Thereafter, in conducting the proportionality balancing exercise, the only detailed factors considered in any detail or at all were those which were favourable to the Appellant. Other than the reference to the Appellant’s ‘having committed a very serious crime’ (at 32) the Tribunal’s consideration of the proposed interference with the Appellant’s family life discloses nothing which tells in favour of the Appellant’s deportation.”

I agree with Longmore LJ that she has failed to make good that challenge. She was unable to explain what more the tribunal needed to say, beyond what was in paragraphs 31-2, to show that they understood the strong public policy considerations in favour of deportation, both generally and in this case. As Sir John Dyson said in MA (Somalia) para 46:

“…If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms...”

That is sufficient to dispose of the appeal. However, I wish to add some further comments on two aspects: (a) the OH (Serbia) factors under the 2007 Act; (b) the relevance at tribunal level of the guidance in AH (Sudan).

As Longmore LJ has explained, Ms Patry Hoskins for the Secretary of State did not place any weight on what he described as “the change from executive policy to legislative policy enshrined in the 2007 Act”. I would wish to leave open for consideration in another case whether she was correct not to do so. It seems to me at least arguable that the new Act does materially change the balance. To understand why it is necessary to look at the statutory background, what the court decided in the two earlier cases, and what has changed.

The Immigration Act 1971 section 3(5) makes a person who is not a British citizen “liable to deportation” if the Secretary of State “deems his deportation to be conducive to the public good”. Before the 2007 Act, the Immigration Rules contained more detailed provisions governing the exercise of the power. Both N (Kenya) and OH (Serbia) were considered under rule 364 in its then form:

“364 Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, 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.”

There followed a list of eight factors to be taken into account, including age, length of residence, connections with the UK, domestic circumstances, and so on, and -

“(vi)

previous criminal record and the nature of any offence of which the person has been convicted;”

Rule 380 of the Rules provided that a deportation order would not be made if his removal would be contrary to the UK’s obligations under the Refugee Convention or the Human Rights Convention.

In N (Kenya) it was agreed that on the facts of the case there was no practical difference between the issues in the deportation appeal and under article 8 (para 27). The adjudicator had decided that risk of re-offending was the “most significant factor counting for deportation”; and that, the risk having been found to be minimal notwithstanding the seriousness of the original offence, it was outweighed by other factors, including the interests of his wife and children. That decision was reversed by the Immigration Appeal Tribunal, whose decision was upheld by this court. The majority held that the adjudicator was over-influenced by his view of the risk of re-offending “to the exclusion or near-exclusion” of the other public interest considerations, and had reached a decision which was “plainly wrong” (May LJ para 64-6), or “not one which could reasonably have been reached” (Judge LJ para 94). Sedley LJ (dissenting) held that the IAT (and by implication his colleagues) had made the mistake of –

“… translating a legitimate disagreement with the adjudicator’s conclusion into an illegitimate finding of perversity on his part…” (para 78)

I agree with Longmore LJ that the legal basis of the majority’s reasoning (most clearly stated by Judge LJ, and as understood by Sedley LJ) was “Wednesbury unreasonableness”, in other words irrationality or perversity.

In OH (Serbia), again under rule 364, the first AIT panel reached a similar conclusion on similar facts, again principally by reference to their assessment of the risk of re-offending. Reconsideration was ordered on the basis that they had made “no assessment whatever” of the relevant public policy considerations or the guidance in N (Kenya). This court took the same view. Having set out his four “propositions” derived from N (Kenya), Wilson LJ said:

“…In their concluding paragraphs there is, of course, a reference to the seriousness of the offence, and a finding, accepted to be amply founded, that there was a low risk of the appellant's reoffending. But such was only one facet of the public interest engaged by this street stabbing on the part of a teenager armed with a knife. There was there no reference in terms by IJ Elvidge and Mrs Jordan to the public interest even though such was the matter against which the compassionate circumstances fell to be balanced. There was no reference to the significance of a deportation order as a deterrent. There was no reference to its role as an expression of public revulsion or in the building of public confidence…

…in the light of their failure to address those important facets of the public interest, IJ Elvidge and Mrs Jordan never proceeded to weigh the approach to them adopted by the respondent in the context of the facts of the case” (para 16)

Thus the tribunal had erred in law by “omitting a relevant factor” (in Sir John Dyson’s words): that is, the Secretary of State’s policy including the public interest considerations underlying it.

In this case, for the reasons I have given, it cannot be said that the policy considerations were not taken into account, and a rationality challenge is not advanced.

It is against this background that one must consider the impact of the “automatic deportation” provisions of the 2007 Act. In relation to a “foreign criminal”, defined as a person not a British citizen, who is sentenced to imprisonment for more than 12 months, Parliament has decreed that deportation “is conducive to the public good”, and that that Secretary of State “must make a deportation order”, unless it would “breach a person’s convention rights” (ss 32-3). This change is reflected in the rules. The revised rule 364 “does not apply where the Secretary of State must make a deportation order in respect of a foreign criminal under section 32(5) (Rule 364A)…”

Having referred to the earlier case-law, Macdonald’s Immigration Law 8^th Ed para 15.20 comments on the new provisions:

“By the rewriting of para 364 of HC 395 in July 2006 and the introduction of automatic deportation of foreign prisoners in 2008, different Home Secretaries have gone much further. There is no longer any question in domestic law of ‘giving appropriate weight’ to the deterrent policy. It trumps in every case, where deportation is automatic and, so far as domestic law is concerned, there is no realistic balancing exercise to be performed any more.”

The editors note, however, that in N (Kenya) the court saw no difference in the balancing exercise under the former rule 364 and article 8, and suggest that in cases where there is family or private life the new automatic provisions “may not have changed anything very much”.

In BK (Ghana) [2010] UKUT 328 (IAC), the Upper Tribunal (presided over by Sedley LJ) commented on the change from the position when N (Kenya) was decided:

“We note, as an aside, that N (Kenya) was decided at a time when there was no legislative guideline or policy in place to determine which offenders ought to be deported, subject always to human rights considerations, and which need not be. Hence the weight required by the Court of Appeal to be given to the Home Secretary’s view of the public interest in arriving at the adjudicator’s or immigration judge’s own conclusion. It is possible that this always difficult exercise – that is to say, giving weight but not primacy to the opinion of another authority in arriving at an independent judgment – has been superseded by the enactment of section 32 of the UKBA 2007. This section draws a bright line, calling for no further judgment, where its terms are met: a “foreign criminal” faces “automatic deportation”. Other foreign offenders do not – they may be deported, but there is no legislative presumption that they will be. Both classes may resist deportation on human rights grounds; but in the case of a “foreign criminal” the Act places in the proportionality scales a markedly greater weight than in other cases. In this situation it is not easy to see what separate or additional weight is to be given to the Home Secretary’s own judgment beyond the fact that it is known to be in favour of deportation. Arguably the executive’s view of policy and its immediate requirements has been superseded by the legislature’s…” (para 24, emphasis added)

Mr Chirico sensibly did not seek to rely on this passage as implying lesser importance for the policy factors in favour of deportation than under OH (Serbia). Although the executive’s policy as such has been superseded, it is readily inferred that the policy factors identified in OH (Serbia) were impliedly endorsed, and if anything reinforced, by Parliament’s intervention. Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under article 8. Although Ms Patry Hoskins did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved.

In MA (Somalia) the Supreme Court approved Baroness Hale’s comments in AH (Sudan) (adopting her own words in Cooke v Secretary of State [2002] 3 All E.R. 279) as to the respect due by the higher courts to decisions of an expert tribunal within its own specialist sphere. In OH (Serbia) Wilson LJ rejected a suggestion that the same constraint should apply to the AIT reviewing its own decisions:

“But the preface to Baroness Hale's statements in [30] of AH (Sudan) was her suggestion that "the ordinary courts should approach appeals from them with an appropriate degree of caution". My view is that the context of her remarks in AH (Sudan) … is the interface between a non-specialist court and a specialist tribunal; and that, when the same tribunal is required to consider whether, by a different constitution, it has perpetrated an error of law, the remarks in AH (Sudan) have no application…” (para 19)

By the same token, Baroness Hale’s comments cannot in my view be applied to the appellate role of the Upper Tribunal. To do so would be to negate the purpose for which the Upper Tribunal has been established, which is to provide specialist guidance on issues of law arising in the First-tier. (see Leggatt: Tribunals for Users para 6.9ff; White Paper Transforming Public Services Cm 6243 para 7.14ff; see also my discussion of the potential role of the Upper Tribunal in Tribunal Justice – a New Start [2009] PL 48). The original comments in the Court of Appeal in Cooke v Secretary of State related to a proposed appeal from the Social Security Commissioners, who exercised a specialist appellate jurisdiction. The Chambers structure in the Upper Tribunal is designed to ensure that the equivalent specialist expertise is available for each category of its work.

However, this should not be confused with the more general principles which apply to any appellate court or tribunal, derived from cases such as English v Emery Reimbold & Strick[2002] 1 WLR 2409. In R(Iran) v Secretary of State [2005] EWCA Civ 982, Brooke LJ cited that case in the relation to the role of the former Immigration Appeal Tribunal, and said:

“(the judgment) reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge’s thought processes when he/she was making material findings.” (para 15)

That general statement is identical in effect to the approach advocated by Sir John Dyson in the passage referred to earlier in this judgment.

I have had the advantage of reading in draft the judgments of Longmore and Carnwath L.JJ. I agree that the tribunal made no error of law in the manner in which it directed itself when making the first determination. It directed itself correctly in paragraph 31 as to the various public interest considerations that it had to take into account in the proportionality exercise; and in paragraph 32 it noted that AP’s drugs conviction was for a “very serious crime” and also noted his previous convictions. There is in my view no basis for a conclusion that, in arriving at its decision on the proportionality question in paragraph 38, it did anything other than take due account of the public interest considerations. It is possible that a differently constituted tribunal might have arrived at a different conclusion, but that is neither here nor there. The decision of the tribunal was neither irrational nor perverse, nor did Ms Patry Hoskins submit that it was.

As my Lords have noted, nor did Ms Patry Hoskins advance any argument that the balancing exercise in which the tribunal had to engage in the present case (to which the automatic “foreign criminal” deportation provisions in section 32 of the UK Borders Act 2007 applied) differed in nature from that applicable in the case of foreign offenders in respect of whom there is no legislative presumption that their deportation is conducive to the public good, but in respect of whom the Secretary of State may form a judgment that it would be. As Carnwath LJ has suggested, there is scope for argument that the balancing exercise may be different. Since, however, we had none, I express no view on the point.

As for the AH (Sudan) point, I agree with Carnwath LJ that Lady Hale’s comments cannot be applied to the appellate role of the Upper Tribunal. If it then falls to this court to decide whether the Upper Tribunal has made an error of law, I agree with Longmore LJ that it must make up its own mind on the matter. It is its duty to do so, although it must discharge that duty with careful regard to the words of caution voiced by Lady Hale.

Like my Lords, I would also allow the appeal.