AM v Secretary of State for the Home Department

On 18 November 2010 the Secretary of State made a decision to deport the appellant (“AM”), a Turkish national, on the grounds that he was a “foreign criminal” within the meaning of section 32 UK Borders Act 2007 and that none of the exceptions created by section 33 applied; in particular, removal would not, under section 33(2) Exception 1, breach the appellant’s Convention rights.

The statutory provisions which apply to the present appeal are as follows:

“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)

.....

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971, 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 (subject to section 33).

(6)

....

(7)

...

33.

Exceptions

(1)

Section 32(4) and (5) –

(a)

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

(b)

are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth Citizens Irish Citizens Crew and other exceptions).

(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.

....

(7)

The application of an exception –

(a)

does not prevent the making of a deportation order;

(b)

results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4.”

Background

I take the factual background from the decision of the First Tier Tribunal (“FTT”) promulgated on 9 May 2011. The appellant was born on 16 May 1969 and is now aged 43 years. He arrived in the United Kingdom from Turkey via Cyprus in December 1993 and claimed asylum, relying on his Kurdish background and alleged association with the PKK. That application was refused and the appeal was dismissed in 1995. In 1994 the appellant met his wife at a Kurdish community centre in London and they married on 26 May 1995. They have two sons born on 10 July 1999 and 24 February 2004, now aged 13 and 8 years respectively. On 5 April 2001 the appellant made further representations to the Secretary of State which were treated as a human rights application. The application was refused on 30 July 2001 but an appeal to the second adjudicator was allowed on 18 July 2003. On 15 October 2003 the appellant was granted discretionary leave to remain which expired on 15 October 2006. Thereafter the appellant enjoyed indefinite leave to remain.

On 25 February 2005, following a trial at Southwark Crown Court, the appellant was convicted with others of a drug trafficking offence. The circumstances, which I take from an OASyS report referred to in more detail at paragraphs 35 and 36 below, were that in August 2004 the appellant was employed as a mini-cab driver in London. He was offered work by an associate driving a Dutch national for three days. On the third day the appellant was requested to drive to an address in Bournemouth. When they arrived at their destination they were arrested and his passenger was found by the police to be in possession of 9.37 kilograms of heroin of high purity which he had collected from the address visited. The appellant was convicted of being knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing a class A drug. On 23 February 2005 the appellant was sentenced to 15 years imprisonment, later reduced on appeal to 12 years. In or about August 2008 the appellant was transferred to open conditions. On 6 August 2010 the custodial part of the appellant’s sentence expired, but he was detained pending deportation until 19 August when he was released on bail.

On 23 November 2010 UK Border Agency notified the appellant that he was subject to automatic deportation as a foreign criminal pursuant to the terms of section 32 UK Borders Act 2007, because he had been sentenced to a period of imprisonment of not less than 12 months, unless he fell within one of the exceptions set out in section 33 of the Act. The Secretary of State accepted that the appellant had established a family life in the United Kingdom but concluded that his wife and two sons could reasonably accompany him to Turkey. The Secretary of State acknowledged her duty to recognise the interests of the appellant’s children as a primary consideration but concluded that other factors outweighed those considerations. The letter informed the appellant that the decision to remove was in accordance with section 32(5) of the 2007 Act and the Agency’s published policy in pursuit of the permissible aim “of the prevention of disorder and crime and the protection of health and morals and the protection of the rights and freedom of others”. The Secretary of State took into account the personal and family circumstances of the appellant but resolved the issue of proportionality in favour of deportation since, she concluded, the appellant had spent his youth and formative years in Turkey and “it is not considered unreasonable to expect you to be able to readjust to life in Turkey”. There was no reason why the appellant’s spouse and children could not be expected to return to Turkey since “your concern for your own children did not deter you from committing the serious crime for which you received a long sentence of 12 years imprisonment”.

The appellant relied before the FTT on witness statements from himself, his wife and two friends. The appellant and his wife were cross-examined on behalf of the Secretary of State. In its important respects that evidence was accepted [13]. Mrs M arrived in the United Kingdom to join her father in April 1992 as his dependent. Her father claimed asylum and the application was granted. In time, Mrs M became a British citizen and the two children who were born in the United Kingdom were also British citizens. From time to time Mrs M made visits to Turkey, for example for family funerals, and occasionally the two boys accompanied her. On one occasion she had, on account of her ethnic origin, been assaulted in the presence of the boys at the airport on arrival in Turkey. The tribunal found that the ties of both mother and children were, at the time of the hearing, predominantly with the United Kingdom and not with Turkey [3].

The appellant had been an industrious prisoner. He received no significant disciplinary adjudications. He undertook educational and other courses, and produced confirmatory certificates. Mrs M had qualified in the late 1990s as a pharmaceutical technician and worked in that capacity until, in about 2009, she developed chronic back pain and panic attacks. Regular contact was maintained between the family and the appellant while he was in prison. He was released on an electronic tag for periods of home leave. The older boy’s school performance deteriorated but, once he was reunited with his father, it picked up again. Both children were doing well at school. The appellant was undertaking the bulk of household duties because his wife was not fit enough for heavier work. However, she provided some care for her own mother. The existence, duration and depth of family life were confirmed by a report from an expert independent social worker, Christine Brown, which was accepted by the tribunal. At paragraphs 6.6 and 6.7 of her conclusions Ms Brown said:

“6.6

… I have no doubt that both [children] are significantly and closely bonded to their father and that the impact of removal will be devastating for them. It is the children who will in essence be “punished” for their father’s lack of status with enormous and enduring implications for all three family members but, most significantly and importantly the children who are not responsible for the situation that they unwillingly find themselves [in] at this time.

6.7

In this instance [the children’s] needs are being met by their mother and father although this has been a precarious journey for this family. To remove [AM] would undermine this and place these children in a position which is the antithesis of good social work practice and what the Children Act 1989 sought to enshrine as essential elements required for positive child development and, what was the initial foundation for child care practices since this time, informing subsequent determinations including those of Lord Lamming’s findings into the Climbie enquiry and more recently that of Baby Peter.”

Notwithstanding these bonds of affection and dependence, the Tribunal was satisfied that, if the appellant was deported, neither his wife nor his sons would accompany him. They would remain in the United Kingdom ([4], [7], [9], [13] – [16]).

The FTT correctly instructed itself as to the considerations relevant to the issue which arose under Article 8(2), namely whether expulsion was necessary in a democratic society and proportionate to the legitimate aim pursued, citing Boultif v Switzerland [2002] 33 EHRR 1179 and Uner v Netherlands [2007] INLR 273. In Uner v Netherlands, at paragraphs 57 and 58, the Grand Chamber listed the relevant factors:

“57.

Even if Article 8 of the Convention does not therefore contained an absolute right for any category of alien not to be expelled, the Court’s case law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision … in the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria … are the following:

-

The nature and seriousness of the offence committed by the applicant;

-

The length of the applicant’s stay in the country from which she or he is to be expelled;

-

The time elapsed since the offence was committed and the applicant’s conduct during that period;

-

The nationalities of the various persons concerned;

-

The applicant’s family situation, such as the length of the marriage and other factors expressing the effectiveness of a couple’s family life;

-

Whether the spouse knew about the offence at the time when he or she entered into a family relationship;

-

Whether there are children of the marriage and, if so, their age; and

-

The seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

58.

The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:

-

The best interests and wellbeing of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and

-

The solidity of social, cultural and family ties with the host country and with the country of destination.”

Furthermore, the FTT applied the five stage test which the House of Lords approved in R (Razgar) v SSHD [2004] 2 AC 368 and confirmed in EB (Kosovo) v SSHD [2009] 1 AC 1159.

The FTT proceeded to examine the legitimate aim pursued, in particular the seriousness of the offence that the appellant had committed. It noted the sentencing judge’s remarks as to the seriousness of the offence, which I shall quote in full:

“[You] have been convicted by the jury of being knowingly concerned in dealing in a substantial quantity of heroin … with the intention of evading the prohibition on its importation. This offence is regarded by Parliament as so serious that the maximum sentence after conviction is life imprisonment and the particular level of sentence for this kind of offence set by the Court of Appeal is very high to reflect that position. The seriousness of trafficking in heroin cannot be understated. It is a drug that is highly addictive and for those who take it and become addicted so often leads to personal degradation, squalor and premature death. So powerful is the addiction that huge numbers of addicts are led to commit a whole range of serious offences, including burglary and robbery, in order to obtain the money to feed the drug and feed their addiction.”

The Tribunal noted the appellant’s poor immigration history. He was unlawfully in the United Kingdom from 1995 to 1998 when he was arrested for a road traffic offence. Having obtained indefinite leave to remain in 2006, he committed a serious criminal offence. The Tribunal acknowledged that the appellant retained links with Turkey. His parents, brother and sister still lived there. Nonetheless the Tribunal found it would be disproportionate to deport him.

The FTT relied on the following matters:

(1)

Notwithstanding a period of unlawful presence in the United Kingdom the appellant had been resident in the United Kingdom for 17 years;

(2)

The probation officer who carried out an OASyS assessment of the risk posed by the appellant concluded that his risk for re-offending was low. The appellant had one previous conviction for a road traffic offence. He was not a habitual criminal and he had learned his lesson.

(3)

The Tribunal found that the appellant had acquired an “especially strong family life under Article 8”. In 2003 the second adjudicator had been satisfied that the appellant had enjoyed a strong family life which was sufficient to outweigh the Secretary of State’s interest in pursuit of the legitimate aim of the prevention of disorder and crime by the commission of further offences such as road traffic offences.

The FTT continued:

“By the date of the hearing before us and taking into account the additional evidence, largely comprising the further reinforcement of that family life which the second adjudicator had recognised, the argument in favour of a finding that the appellant’s family life is an especially strong one became difficult to resist. It became difficult to resist in particular in the light of two developing features. They comprised the ill-health over the period of the last 3 years of Mrs [M] and the continued development in the way that children indigenous to the United Kingdom often do develop … in terms of their education and, it was to be inferred, their continuing establishment of community ties with the United Kingdom, the country in which they were born and of which they are nationals. A strong private life was also established by the appellant and his family members. …”

(4)

It would not be reasonable to expect other members of the family to follow the appellant to Turkey. The effect on the children would be particularly harsh. Mrs M and the children had few, if any, ties with Turkey. The children did not speak Turkish. It was in the children’s best interests that they remain in the United Kingdom.

The Tribunal concluded with these words:

“Again, the consequence of the respondent’s decision to make a deportation order would be to separate and indeed break up a family. For that reason her decision is unlawful. The appellant established that Exception 1 contained in section 33(2) of the Act was established and that accordingly section 32(4) and (5) is disapplied. The appeal on human rights grounds is allowed.”

In her application for permission to appeal to the Upper Tribunal, Immigration and Asylum Chamber (“UT”), it was asserted on behalf of the Secretary of State that “whilst it is accepted that the panel do refer to the offence and its seriousness it is submitted that the consideration was flawed as a matter of law by the failure of the panel to properly consider the public interest in deportation in this case”. Further, it was argued that the FTT placed too much weight upon its finding that there was a low risk of re-offending. On 3 June 2011 permission to appeal was refused by FTT because the grounds amounted to “little more than” an argument as to the merits.

The Secretary of State renewed her application for permission to appeal to the UT relying upon the grounds already advanced and she enlarged upon the submission that the identification by the FTT of a low risk was a wrong conclusion. On 30 June 2011 Senior Immigration Judge Gill gave permission to appeal on two grounds, first that it was arguable that, in reaching a conclusion that the appellant was a low risk for re-offending, the panel had overlooked the appellant’s evidence that he was not guilty of any offence and, second, that the panel had failed to identify the strength of the State’s interest in deportation in concluding that, without more, deportation which resulted in the break-up of a family resulted in a breach of Article 8. I do not accept the appellant’s submission that the Secretary of State’s public interest argument was not properly before the UT for decision.

The UT acknowledged that the FTT had cited both European and domestic authority which established the principles upon which the deportation decision should be judged. However, the FTT had made no reference to important domestic decisions identifying the public interest against which the proportionality of deportation was to be measured. In particular, at paragraph 22 the UT said:

“22.

It is quite clear to us, that when considering whether or not in this case it would be proportionate to order the deportation of this claimant, the panel failed to have regard to the principles enunciated in the Court of Appeal authorities set out above. Nowhere is there any reference to the legitimate need to deter non-British citizens by ensuring that they clearly understand that one of the consequences of serious crime may well be deportation. Nor is there any consideration of the role of a deportation order as an expression of society’s revolution at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.”

The UT noted that the words with which paragraph 27 of the FTT’s determination concluded (at paragraph 11 above) were simply wrong in law.

Secondly, the UT concluded that the FTT’s finding as to low risk was perverse. It reasoned its decision as follows:

“13.

Having considered the submissions carefully we are satisfied that there were material errors of law in the Panel’s determination. We note first of all the last sentence of paragraph 23 of the Determination where it is stated on behalf of the Panel that “we accord some weight to [the claimant’s] protestation that he has learnt his lesson”. In light of the claimant’s continued denial that he committed the offence of which he was convicted, he cannot have demonstrated that he has learnt any lesson at all, in any meaningful sense. In our judgment, the consequential finding that the claimant presents low risk of re-offending is simply not tenable.”

Having set aside the decision of the FTT for errors of law, the UT proceeded to remake the proportionality decision. For this purpose the UT accepted the findings made by the panel with regard to the appellant’s family life and, in particular, to the devastating effect which the removal of the appellant would have on his family. The UT accepted that for perfectly legitimate reasons neither the appellant’s wife nor his children would follow him to Turkey but would remain in the United Kingdom. It was accepted that it would be in the best interests of the children that the appellant was not deported.

Mr Aslam, the solicitor representing the appellant before the UT, tendered the appellant for cross-examination. In its determination the UT observed:

“29.

In the light of our acceptance of the evidential findings made by the First Tier Tribunal, Mr Aslam relied upon the evidential findings already made, but tendered the claimant for cross-examination. In answer to the question which was put to him as to what he accepted he had done wrong, the claimant said that “my biggest mistake was I trusted those people who put me in that situation”.”

The UT recognised that there were present “obviously important compassionate factors”. Nevertheless, there were circumstances in which the best interests of the children would not necessarily be determinative. As to the appellant’s evidence in cross-examination about his “biggest mistake” the UT said:

“42.

With regard to the claimant’s continued protestation of innocence, there are two possibilities. The first is that both the judge and the jury, who were both satisfied beyond reasonable doubt of the claimant’s guilt, were wrong; the other possibility is that the claimant is lying when he says he was not guilty. We cannot go behind the verdict of the jury, and so are forced to the conclusion that the claimant was lying when he told us that he was not guilty, and that the extent of his wrongdoing had been to trust his co-defendants. We cannot therefore accord any weight to the claimant’s “protestation that he has learnt his lesson” as found by the First Tier Tribunal Panel and to that extent we do not accept its findings. Nor, in the light of our finding (which is inevitable in the light of the jury’s verdict) that the claimant has lied to us with regard to the offence which he committed, can we accept that he presents only a low risk of re-offending.”

The UT, as did the FTT, took full cognisance of the seriousness of the offence committed by the appellant. It continued:

“44.

We must take into account that for an offence of this seriousness, there is a clear public need to deter foreign criminals, so that they understand that a likely consequence of committing offences of this seriousness is that they will be deported, even if there are compassionate circumstances in their case.”

In striking the balance between competing interests the UT noted that although the appellant had been in the United Kingdom for 17 years he had status for only two years before the commission of an extremely serious offence. It continued:

“45.… we also take note of the fact that if he were to be deported, it would be to a country where he speaks the language and would be able to make a life for himself, albeit without his family.”

In conclusion, the UT accepted that deportation would have the effect of breaking up the family. That would necessarily interfere with the appellant’s and his family’s family life such that his Article 8 rights were engaged. However, that interference would be lawful, necessary and proportionate to the legitimate purpose of the protection of society against serious crime. Thus, the decision of the FTT was reversed.

Mr Saeed, solicitor advocate on behalf of the appellant, argues that the UT was wrong to characterise the FTT’s decision as erroneous in law and itself made an error of law in reaching its contrary decision on proportionality. I consider, first, Mr Saeed’s response to the UT’s conclusion that the FTT failed to identify the public interest in deterrence in pursuit of the legitimate aim of the prevention of disorder or crime. Mr Saeed first submits, and I accept, that it was not necessary for the FTT to cite authority for the principles of law which guided its assessment provided that in its reasoning the FTT demonstrated that the correct principles had been followed (see OH (Serbia) v SSHD [2008] EWCA Civ 694 at paragraph 13). As in OH (Serbia), it seems to me that the issue in the present appeal is whether it is discernable from the FTT’s reasoning that the correct principles were applied.

There can be no doubt that the FTT’s approach, based as it was on relevant European authority and the five stage test enunciated by Lord Bingham, was correct in principle. In the course of the FTT’s self-direction upon the law, it referred to the seminal analysis by Lord Bingham at paragraph 18 of Huang v SSHD [2007] 2 AC 167 (HL) of the function and importance of family life. It extracted from the judgment of Lord Bingham in EB (Kosovo), paragraph 12, the observation that:

“it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that the spouse cannot reasonably be expected to follow the removal of a spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child”.

In these two cases Lord Bingham was making observations of general application in the context of immigration decisions and not in the context of deportation following the commission by a foreign national of a serious criminal offence.

The nature of the public interest engaged in a deportation case such as the present was described by Judge LJ (as he then was) in N (Kenya) v SSHD [2004] EWCA Civ 1094 at paragraph 83:

“83.

The “public good” and the “public interest” are wide ranging but undefined concepts. In my judgment (whether expressly referred to in any decision letter or not), broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that whatever the circumstances, one of the consequences of serious crime may well be deportation …”

At paragraphs 64 and 65 May LJ said:

“64.

In a deportation appeal under section 63(1) of the 1999 Act, the adjudicator has an original statutory discretion as provided in paragraph 21(1) of Schedule 4 of the 1999 Act. The discretion is to balance the public interest against the compassionate circumstances of the case taking account of all relevant factors including those specifically referred to in paragraph 364 of HC 395. Essentially the same balance is expressed as that between the appellant’s right to respect for his private and family life on the one hand and the prevention of disorder or crime on the other. Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society’s revulsion at the seriousness of the criminality. It is for the adjudicator in the exercise of his discretion to weigh all relevant factors, but an individual adjudicator is no better able to judge the critical public interest factor than is the court. In the first instance, that is a matter for the Secretary of State. The adjudicator should then take proper account of the Secretary of State’s public interest view.

In JO (Uganda) [2010] EWCA Civ 10, at paragraph 29, Richards LJ (with whom Mummery and Toulson LJJ agreed) drew attention to the difference between the separate public interests in immigration control and in the deportation of foreign criminals:

“29.

There is, however, one material difference between the two types of case in that they generally involve the pursuit of different legitimate aims; in deportation cases it is the prevention of disorder or crime; in ordinary removal cases it is the maintenance of effective immigration control. The difference in aim is potentially important because the factors in favour of expulsion are, in my view, capable of carrying greater weight in a deportation case than in a case of ordinary removal. The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given corresponding greater weight in the balancing exercise. Thus I think it is perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. I stress “in principle”, because the actual weight to be placed on the criminal offending must of course depend on the seriousness of the offending and the other circumstances of the case.”

The Court considered the impact upon the deportation decision of the important public interests in deterrence and the welfare of children in Ad Lee v SSHD [2011] EWCA Civ 348. Sedley LJ, giving the judgment of the court, first explained the application of ZH (Tanzania) at paragraph 11 of his judgment of the court:

“11.… ZH (Tanzania) [2011] UKSC 4 [is] a case which highlights the importance to be given to the best interests of children potentially affected by removal or deportation decision. Although Lady Hale began by postulating a case in which removal of the parent will bring about removal of the child, we accept that similar reasoning has to be applied where removal of a parent would leave a child here. What the child’s interests have to be balanced against are of course the imperatives for removing the parent which, in a deportation case, may be powerful. But the child’s interests are themselves entitled to great weight as the ECtHR stressed in Uner v The Netherlands [2006] 45 EHRR 421. As Lady Hale went on to point out recent ECHR jurisprudence had shifted the focus to these and away from the parent’s wrongdoing, but certainly not so as to exclude the latter. She said:

‘25.Further, it is clear from the recent jurisprudence that the Strasbourg Court will expect national authorities to apply Article 3.1 of UNCRC and treat the best interests of a child as “a primary consideration”. Of course, despite the looseness with which these terms are sometimes used, “a primary consideration” is not the same as “the primary consideration”, still less as “the paramount consideration’.”

The Court concluded that the assessment of the required factors by the Immigration Judge in that case was not capable of any justifiable criticism. Thus, at paragraph 27, Sedley LJ concluded:

“27.

The tragic consequence is that this family, short lived as it has been, will be broken up forever because of the appellant’s bad behaviour. That is what deportation does. Sometimes the balance between its justification and its consequences falls the other way, but whether it does so is a question for an immigration judge. Unless he has made a mistake of law in reaching his conclusion – and we readily accept that may include an error of approach – his decision is final. In our judgment the immigration judge in the present case reached a permissible conclusion by means of a properly structured appraisal of the evidence, informed by a correct understanding of the legal importance of a child’s best interests. If follows that this appeal has to be dismissed.”

I turn to consider the question whether the FTT had in mind the public interest in deterrence when reaching its assessment of proportionality. Having stated in paragraph 19 of its determination that it proposed to adopt the five stage test the FTT said at paragraph 20:

“The respondent amply discharged the burden of proving that the interference posed by the decision to make a deportation order with the right of the appellant and his family is in accordance with the applicable legislation and necessary in a democratic society for the prevention of disorder or crime and for the protection of health or morals. The respondent made the deportation order mindful of such legitimate aims.”

This was a reference to submissions made on behalf of the Secretary of State concerning the identification of the legitimate aim of the prevention of crime in Art 8(2). Those submissions are recorded by the FTT at paragraph 11 of its Determination:

“In part, Mr Morley relied on the notice of decision which incorporated the respondent’s reasons for making the deportation order. Mr Morley acknowledged the appellant’s established private life under Article 8 and that the decision to make a deportation order interfered with his right of respect for private and family life. Mr Morley submitted that the legitimate aim of the prevention of disorder or crime outweighed the family and private life which the appellant established. Mr Morley particular emphasised the seriousness of the offence for which the appellant had been convicted and his lack of acknowledgement of his guilt and accordingly his lack of remorse …”

Having searched the UKBA’s decision letter of 23 November 2010 and the FTT’s determination, I can find no reference to the wider public interest considerations to which the domestic decisions of this Court have made repeated reference in recent years. The UKBA’s letter, faithfully represented by the presenting officer to the FTT, relied only upon the automatic deportation qualification of the appellant, the seriousness of the offence and the legitimate aim of preventing crime.

The opinion of the Court in N (Kenya) that the public interest in deterrence was a permanent feature of the legitimate aim being pursued, whether expressly relied on by the Secretary of State or not, is relevant to the current appeal, notwithstanding that since 2007 the public interest is expressed in a statutory obligation to deport. N (Kenya) pre-dated the automatic deportation of “foreign criminals” provisions in the 2007 Act. In RU (Bangladesh) v SSHD [2011] EWCA Civ 65, however, Aikens LJ said:

“35.

...[In] a case where the SSHD has made a deportation order against a “foreign criminal” which is challenged on the ground that removal would infringe the potential deportee’s ECHR rights under Article 8(1) and would be disproportionate under Article 8(2), a tribunal must move directly to consider whether (i) the person’s ECHR rights would be infringed if removed and (ii) if so, whether the removal would be disproportionate. If the “proportionality” exercise has to be carried out under Article 8(2) because it is concluded that removal of the deportee would infringe his article 8(1) rights, then both the SSHD, as the original decision maker, or any tribunal reviewing that decision, must take into account the public interest embodied in the terms of the proviso to section 33(7) of the UKBA: viz. that deportation of a “foreign criminal” is conducive to the public good, even if he can demonstrate removal would infringe his Article 8 ECHR rights.

36.

Because, by statute, the deportation of “foreign criminals” is deemed to be conducive to the public good, I think the constituents of that “public good” must continue to include those particular facets of “the public interest” summarised by Wilson LJ in OH (Serbia) and set out at [33] above. Therefore, if a “foreign criminal” asserts that removal by a deportation order pursuant to section 32(5) of the UKBA would be a disproportionate interference with his Article 8(1) rights, both the SSHD and any reviewing tribunal must be obliged to take those public interest factors into account when performing the “proportionality” balancing exercise.

....

40.

At all events on an appeal from the SSHD’s decision that section 32(5) applies in a case where the “foreign criminal” has argued that removal pursuant to an automatic deportation order would infringe his Article 8(1) rights and be disproportionate, the tribunal or court concerned must recognise and give due weight to all the public policy factors identified in OH (Serbia). It must be acknowledged that the SHHD is entitled, indeed obliged, to give due weight to them. The tribunal or court must also acknowledge and give weight to them when drawing the “proportionality balance” under Article 8(2).”

It follows, as Sir Stephen Sedley said at paragraph 9 of Gurung v SSHD [2012] EWCA Civ 62 when commenting upon RU (Bangladesh), that there is no longer any requirement upon the Home Secretary to form her own view of the public interest in deporting a foreign criminal who is sentenced to not less than 12 months imprisonment. She is bound by section 32 (subject to 33) to make an order for deportation when the conditions of section 32 are satisfied. As Sir Stephen Sedley also said at paragraph 9:

“… in the absence of a statutory exception, the tribunal must uphold a deportation order against a foreign criminal not because the Home Secretary considers that the public interest requires deportation but because Parliament does.”

Sir Stephen Sedley continued at paragraphs 11 and 12:

“11....The public interest is not only to be treated as by definition served, subject to the United Kingdom’s international obligations, by deporting foreign criminals; it is also among the factors capable of affecting the proportionality of deporting them if this arises. This means that, while the public interest in deportation has already been established by legislation, its content and extent in the particular case have to be separately evaluated, initially by the Home Secretary and thereafter if necessary by the tribunal, if the proportionality of deportation comes into question.

12.

The tribunal should accordingly entertain both sides’ submissions on the public interest along with such elements of the nature and gravity of the offence; but the fact that one estimation of the public interest (or of any other element) is the Home Secretary’s, whether leaning towards or against deportation in the particular case, commands no additional weight. To let it do so – as counsel for the Home Secretary have implicitly recognised – would be to upset the equal footing on which the Crown and the individual come before this country’s tribunals and courts, not least when Parliament has already decided where, other things being equal, the public interest lies. It would also impinge on the independence and impartiality of the tribunal by requiring it to defer to one side’s judgment of a material question.”

It is necessary to return to the decision of this court in OH (Serbia). This was a decision also made under the pre-2007 Act framework. Paragraph 364 of the Immigration Rules applied. In general, the matters to be considered were those which I have extracted from Uner v The Netherlands at paragraph 8 above. The appellant had committed an offence of wounding with intent to do grievous bodily harm contrary to section 18 Offences against the Person Act 1861. The tribunal allowed the appeal against deportation. The respondent sought and obtained reconsideration on the grounds that the tribunal had failed to apply the public interest considerations described by the court in N (Kenya). The decision was subsequently reversed. The issue for the Court of Appeal was whether the original tribunal had made an error of law. At paragraph 16 of his judgment (with which Maurice Kay and Pill LJJ agreed), Wilson LJ (as he then was) said:

“16.

…I am quite unable, notwithstanding numerous attempts, to bring out of the determination of [the tribunal] a lawful despatch of the appeal. 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 no reference in terms … 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. I am unable to subscribe to the argument … that from the introductory paragraphs of the determination … we can infer that [the tribunal] took account of these matters; indeed not even there are they squarely addressed. I have paused for thought about the fact that, in his written reasons for deportation, the respondent had himself not referred specifically to those features. He had, however, referred to the need to protect the public from serious crime, of which the deterrence of persons other than the appellant is … an obvious component. A complaint often made is that in this court appeals can be determined upon points not made or not clearly made at trial. I am conscience of the fact that we do not know whether the presenting officer cast the respondent’s case even in part by reference to these facets of the public interest; indeed, in the light of the summary … of the presenting officer’s submissions, it seems that he may well not have done so. But … such, however, cannot affect the existence or otherwise or an error of law in a determination. And it follows that, in the light of their failure to address those important facets of public interest [the tribunal] never proceeded to weigh the approach to them adopted by the respondent in the context of the facts of the case.”

While the landscape for qualification for deportation has changed in consequence of the 2007 Act by the creation of “automatic deportation” of “foreign criminals”, it seems to me, in agreement with Aikens LJ in RU (Bangladesh) and Sir Stephen Sedley in Gurung, inevitable that in measuring proportionality the public interest in deterrence is a material and necessary consideration. The public interest is an important component of the balancing exercise required to test proportionality (for the purpose of section 33(2)(a)) whether or not the Secretary of State expressly says so in her decision letter or in the presenting officer’s submissions to a tribunal. It is an indelible feature of the balancing exercise that the decision maker weighs the consequences of deportation against the full import of the legitimate aim to be achieved. Mr Saeed, with some skill, sought to persuade the court that we could infer from the express language used by the FTT that it had well in mind the public interest which the domestic cases identify. I accept that this court should not readily conclude that a specialist tribunal erred in law but also “that it is for the Tribunal to demonstrate that it has applied the correct test when striking that balance” (per Pill LJ in OH (Serbia) at paragraphs 27 and 32). With some regret I must conclude that no such inference is available. The only expression of the legitimate aim which appears in the FTT’s determination (see paragraph 27 above) is that which Article 8(2) expressly identifies. The emphasis in the FTT’s self-direction of law is upon the harsh consequences of separating a family which may follow an immigration decision. It drew no distinction between the public interest considerations arising in immigration decisions (to which Lord Bingham was referring in Razgar and EB (Kosovo)) and in deportation decisions following the commission of serious crime. As Richards LJ held in JO (Uganda) different considerations apply when the balance is to be struck against a separate and more powerful public interest. For this reason I am unable to conclude that the FTT did have in mind both the existence and the breadth of the legitimate aim which the deportation order was pursuing. However, I cannot avoid expressing my dismay that the respondent did not bring to the FTT’s attention, either in her decision letter or in submissions to the tribunal, the very matters on which she now relies to undermine its decision.

As I have said, the FTT did engage in the staged consideration required. As to the question whether there was a family life which required respect, the answer was in the affirmative and the existence of family life is not an issue. As to the question whether deportation would interfere with the enjoyment of that family life the answer was that the family, inevitably and reasonably, for the sake of mother and children, would be broken up, and that too is no longer an issue. As to the questions whether the interference was in accordance with the law and in pursuit of a legitimate aim, it is clear from the passage I have quoted from paragraph 20 of the Determination that the FTT answered this question in the affirmative. Finally, as to the question whether deportation was necessary, proportionate, and struck a fair balance between the right to respect for the family life of the appellant, his wife and children and the particular public interest in question, the FTT recognised that the appellant’s offence was “most serious”, that the appellant’s immigration history was poor, and that the appellant himself retained some ties with Turkey. The FTT further concluded that there were especially strong familial bonds which would render a decision to deport particularly harsh in the case of this family and this appellant. None of this indicates to me that the FTT was adopting a flawed approach, save for its failure to identify deterrence in pursuit of the legitimate aim as a material and important consideration.

I turn, secondly, to the concluding words of the FTT’s Determination (at paragraph 11 above). Read in isolation, I accept that the words used suggest that the break-up of the family would alone bring the appellant within Exception 1 which was, of course, not so. The appellant would only bring himself within that exception if the consequences of the deportation would be disproportionate to the legitimate aim pursued. However, that is the very question to which the FTT had addressed itself when embarking upon its consideration of, on the one hand, the seriousness of the offence and, on the other, the effect of deportation on the appellant and his family. Read in context, it seems to me that the FTT was saying that the outcome of the proportionality assessment carried out in paragraphs 20-27 of the Determination rendered the decision unlawful, not that the break-up of the family without more, rendered the decision unlawful. In this respect I accept the submissions made by Mr Saeed and reject those of Ms Busch.

Thirdly and finally, I consider the question whether the FTT made an error of law, either by omitting consideration of material evidence, or by reaching a decision which was perverse, as to the low risk for re-offending presented by the appellant. I am afraid that I cannot, with respect to the UT, support its departure from the assessment previously made. It may well be that the appellant was anxious to minimise, even to deny, his criminality before the FTT and the UT, but the OASyS assessment had been made by a trained probation officer whose job it was to assess risk and, in my view, was not lightly to be dismissed. I do not suggest that, if the FTT had made an error of law, it was not open to the UT to re-examine the issue of risk presented by the appellant, but if it did so it was incumbent upon the UT to engage not just with the appellant’s present denial but also with the evidence which caused the probation officer to reach the conclusion he did, and with the appellant’s conduct since his release. There is no reference in any part of the UT’s reasoning to an examination of the OASyS assessment or any reasoned basis for the substitution of its own view for that of the probation officer.

The relevant document is dated 31 December 2007, almost 3 years before the appellant was released from custody, and shortly before he was transferred to an open prison. It was presumably on the basis of the OASyS assessment that the transfer was ordered. An appreciation of the circumstances of the appellant’s involvement in the offence was required. The description which I have given earlier in this judgment was taken from this document. The trial judge assessed the roles of the offenders as follows (AB page 340):

“I am quite satisfied that you, [Y], were involved in the purchase and in those negotiations and that you played a key part in arranging the purchase of the heroin and its collection. You therefore had an organisational role, so that your criminality in this matter is particularly serious. I bear in mind, as with all the defendants, that you are persons of no previous convictions and have families. You [AM] are now 35 years of age and I am quite satisfied that you are closely involved in the arrangements that were being made for the collection of the heroin and were assisting [Y] and [J] as necessary. On 7 August you had an important role in driving [J] to Bournemouth to collect the heroin and you were then going to deliver it back to [Y]. On the evidence before me I am satisfied that you were assisting [Y] rather than being an organiser, and an allowance for that should be made in the sentence that I pass. In your case [J] you are now ... 65 this year. In your case you came to this country and were closely involved in the discussions concerning the sale of the heroin and it was your responsibility you go and collect the heroin and see that it was safely delivered. You therefore played an important part in the organisation of this criminal enterprise and I have thought long and hard as to whether it would be right to distinguish your position from that [Y].”

[J] and [Y] were each sentenced to 16 years imprisonment and the appellant to 15 years imprisonment. On appeal, the appellant’s sentence was reduced to 12 years. It is not known whether the co-accused’s sentences were also reduced, but it seems probable that in the appellant’s appeal a further reduction was made to his sentence to reflect his lesser role.

At paragraph 2.5 of the report the writer dealt with the “Impact to victim”. He said:

“Although no direct victims, [AM] said: “Since I have come into prison I have realised just how much of a problem drugs are, this is to the users and to the community as a whole because of the addicts trying to get money to buy their drugs. I am really sorry to have been involved in this side of things”.

At paragraph 2.8 under the heading “Why did it happen – evidence of motivations and triggers?” the writer noted:

“[AM] stated he was doing a favour for someone he trusted and considered to be a friend, he was offered £100 a day for 3 days work. He suspected that drugs or jewellery were involved. [AM] went on to say: “I was stupid to continue but told myself it was the last day. My wife is very angry with me but has luckily for me decided to give me another chance. I would no way put myself in this position and now I am sorry to say I have a problem with trusting anyone, Mr [Y] my so called friend never even apologised to me or my family”.”

At section 11 the report writer noted that the appellant had no problems with communication, impulsivity, aggression or temper control. As to the appellant’s ability to recognise problems and to solve them he wrote:

“[these] were deficits relating to the time of the offence. [AM] admits that he was too trusting of an individual and should have asked more questions. He was employed for 3 days but discovered on the second day that drugs were involved; he stated that he stupidly decided to continue rather than refuse the third day’s work.”

To the probation officer, therefore, the appellant was minimising his culpability for the offence, by suggesting that he was only aware of his true role after he had committed himself to assist his friend [Y]. The trial judge had found that the appellant was “closely involved in the arrangements”. On the other hand, the appellant’s account of his recruitment provides a further insight into the place which he occupied in the criminal enterprise. He was the driver.

In section 12 “Attitudes” the probation officer wrote that the appellant’s view about law and order were generally positive and he recognised that the majority of people are law abiding. There was nothing on file that indicated any problems in the area of discriminatory attitudes or behaviour. Wing staff stated that the appellant was a polite and compliant prisoner who mixed well with staff and his peers. He had a positive attitude to licence and could foresee no problems with compliance with licence conditions. He accepted limitations on his personal freedom for the general good. As to motivation for offending the appellant told the probation officer that he had been naive. Asked whether he thought he would commit further offences, the appellant responded, “Definitely not”. The probation officer recorded one, minor adjudication and assessed the appellant as a low risk of harm both in custody and in the community.

There was, as I understand it, no suggestion that the appellant had failed to comply with the conditions upon which he was released early on leave, or indeed upon his final release on licence. In my judgment, the UT erred in deciding that the FTT had made an error of law in concluding that the appellant represented a low risk to the community. The FTT had explicitly noted the appellant’s current denials of criminality but, nevertheless, accepted the probation officer’s assessment and the appellant’s own evidence that he had learned his lesson. That conclusion was, it seems to me, on the facts of the case, open to the tribunal and was far from “untenable”. The UT’s conclusion betrayed an underlying conviction, without reference to the contents of the OASyS report or the nature of the appellant’s involvement in the offence, that no person who denies an offence can ever resolve not to be sucked into criminality again. Unhappily, experience tells us that contrition is no guarantee of reform, any more than personal pride is a bar to rehabilitation. A man who faces expulsion from his family might persuade himself that he was not guilty after all, but that does not mean that he cannot resolve never to place himself in a position of temptation again. I recognise that in the case of persistent sexual offending, particularly against children, it is a commonly understood that a refusal by an offender to accept guilt reveals an entrenched attitude of mind towards sexual offences which enhances the risk of repeat offences. This was not a sexual case. I do not consider that the UT was correct to take such a firm view about this appellant’s risk for re-offending based solely upon its own assessment of the implications of the appellant’s denial. The appellant had undoubtedly committed a very serious offence. He had been employed to act as a driver for a man who was supplying a substantial quantity of class A drugs recently imported into the United Kingdom. He was not, however, an organiser or manager and there is no evidence that his involvement was greater than that which emerged at his trial. Rehabilitation is often, but not exclusively, accompanied by a full confession.

In my judgment the FTT erred in law in failing adequately to identify or to apply the relevant public interest component in the legitimate aim; accordingly, the UT was entitled to make its own decision. However, I also conclude that the UT made an error of law in its failure to accept the factual decision of FTT that the appellant presented a low risk for offending. As I read the UT’s refusal to accept that the appellant represented a low risk of re-offending, it may have regarded that finding as a significant component in the balancing exercise. I do not think that the UT’s conclusion can stand. The proper forum for decision remains, in my view, the specialist tribunal. I would quash the decision of the Upper Tribunal and remit the matter for further consideration by a differently constituted panel of the Upper Tribunal in the light both of our judgments and the findings of fact made by the FTT.

I agree with the disposal of the case suggested by Pitchford LJ, essentially for the reasons he gives. I add a few observations of my own, drawing on the cases referred to by Pitchford LJ.

The central question in this appeal is whether the FTT erred in law in its approach to proportionality. In particular, did the FTT have in mind not only the risk that the applicant might commit future offences but also the need to deter foreign nationals from committing serious offences by making it plain that one of the consequences may well be deportation, as well as the legitimate need to reflect society’s public revulsion of such crimes and to ensure that the public will have confidence that offenders will be properly punished?

The decisions of this court in N (Kenya), OH and RU (Bangladesh) all emphasise the importance of a tribunal giving full weight to these different aspects of the public interest in the proportionality assessment. They emphasise that it is not a sufficient answer to the public interest concerns that the risk of future offending by the applicant himself is very low. Indeed, where a serious offence has been committed, then as Lord Justice Judge (as he was) pointed out in N (Kenya) (para 65), that will not even be the most important aspect of the public interest.

Nowhere does the Tribunal in terms state that it has had regard to these factors. But I do not believe that the observations of Lord Justice Wilson in OH or of Lord Justice Aikens in RU (Bangladesh) were intending that they should be repeated, mantra fashion, when a tribunal is explaining its proportionality assessment in order for a tribunal’s decision to pass muster. However, if a tribunal fails expressly to refer to these factors, then in my view there will have to be very cogent evidence from which it can properly be inferred that the tribunal must have had these considerations in mind. It is not enough to say that a specialist tribunal must have been aware of these authorities and should be assumed to have given weight to these factors.

The question for us is whether it is legitimate to infer that the FTT gave full weight to those considerations.

The FTT in terms followed and applied the principles enunciated by the ECtHR in the cases of Boultif and Uner. Paragraph 40 of Boultif sets out the relevant criteria to which a court should have regard when assessing the proportionality of deportation for criminal offences.

The first consideration identified is the nature and seriousness of the offence and this was a factor specifically taken into account by the Tribunal. The wider public interest aspects enunciated in the domestic cases find no direct reflection in the Strasbourg jurisprudence, but I take the domestic decisions to be providing a more explicit explanation as to the way in which the seriousness of the offence will engage the public interest. However, it is plain from the domestic jurisprudence that a mere reference by a tribunal to the nature and seriousness of the offence will not suffice to satisfy an appellate court that proper consideration has been given to all aspects of the public interest. A tribunal cannot, therefore, act on the premise that a conscientious application of the Boultif criteria (as further explained in Uner and Maslov v Austria [2008] ECHR 508)) will constitute a lawful application of the proportionality principle.

There can, in my view, be no doubt that the FTT recognised that the legitimate interest being relied upon was the need to prevent disorder and crime and the protection of health and morals; they said as much at paragraph 30 and it was the basis of the Secretary of State’s submissions. To that extent the FTT did not treat the State’s legitimate objective simply as the enforcement of immigration control.

Nor, in my view, did the Tribunal fall into the trap of assuming that if there was no significant future risk of offences being committed by the applicant, this effectively removed or answered the public interest concerns. They dealt with it simply as a factor to weigh in the balance in the appellant’s favour. They plainly placed not inconsiderable weight on the seriousness of the offence as reflected in the length of the sentence, and they focused on the damage which heroin trafficking causes. Indeed the Tribunal observed that the respondent had “amply discharged” the burden of proving that there were legitimate aims supporting the deportation order. In fact, that legitimate aim was established by the fact of the sentence being in excess of 12 months, but the reference to “amply demonstrated” suggests that the Tribunal was aware that significant weight should be given to the public interest in favour of deportation.

I have wondered whether in the light of these considerations we can properly infer that this specialist Tribunal did have regard to the necessary considerations, albeit that they did not refer to them. But I have concluded, in agreement with Pitchford LJ, that this would be a step too far. There is nothing in the decision or even the way in which the arguments were framed before the FTT to indicate that these wider aspects of the public interest were even drawn to the Tribunal’s attention.

For myself, I may well have been willing to infer that the Tribunal must have had these matters in mind if, for example, the Secretary of State had focused on them in his submissions to the FTT. But he did not. Indeed, as Pitchford LJ has pointed out, a wholly unattractive feature of this appeal is that the Secretary of State is now criticising the FTT for failing to have regard to considerations which he himself had ignored in his decision, and which he had not relied on before the FTT on appeal. But OH confirms that even where that is the case, it is the duty of the Tribunal to have regard to these factors notwithstanding that the Secretary of State has not done so. I cannot be satisfied that the Tribunal did have regard to these considerations. It follows that the UT were right to find that the FTT erred in law.

I also place weight, as did Pitchford LJ, on the fact that the Tribunal referred to the observations of Lord Bingham in EB (Kosovo) (para 12) where His Lordship observed that it would be rare for removal to be proportionate if there was a close family bond and it was unreasonable to expect the family to follow the family member being removed. That was in a context where the public interest was the need to enforce immigration control. I do not think that Lord Bingham intended that observation to apply in cases where a person is being deported for a serious criminal offence.

As Richards LJ pointed out in JO (Uganda) para 29, the factors in favour of expulsion carry greater weight in the latter situation and particularly, one might think, where serious drug offences have been committed. I cannot be sure that the FTT properly appreciated that fact.

I have sympathy for the FTT. They conscientiously applied Strasbourg jurisprudence, they dealt with the arguments advanced before them, and they produced a cogent and careful judgment. Nonetheless I am satisfied that their decision cannot stand for the reasons I have given. However, I agree entirely with Pitchford LJ’s analysis of the Upper Tribunal decision, which cannot stand either for the reasons he gives. So the matter should be remitted to a fresh tribunal.

54. I too have sympathy for the FTT. My favourite (sic) case has to be Piglowska v Piglowski [1999] 1 WLR 1360 where Lord Hoffmann said at p. 1372:

“The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as were given by the District Judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Proceedings Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

Section 25(2) of the Matrimonial Proceedings Act may be a mile removed from section 32 of the UK Borders Act 2007 but a similar point was made by Baroness Hale in AH (Sudan) v SSHD [2007] UKHL 49, [2008] AC 678 where she said at [30]:

“… This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para 16. … Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently.”

Despite that, I am driven to conclude, with regret, that I cannot be confident that the FTT had in mind essential elements of the public interest, namely, deterrence and revulsion. That may be because of the lamentable failure of the Secretary of State to draw them to the Tribunal’s attention. But the Secretary of State cannot now be estopped from bringing them to our attention and, having done so, I have to agree with my Lords that the appeal must be allowed for the reasons they give and the matter remitted to the Upper Tribunal for reconsideration.