England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Monday, 2nd October 2000

Monday, 2nd October 2000

1. LORD JUSTICE OTTON: I shall invite Lord Justice Ward to give the first judgment.
2. LORD JUSTICE WARD: This is an application for permission to appeal against the decision of the Immigration Appeal Tribunal made on 28th April of this year, the tribunal having dismissed the applicant's appeal against the decision of Mr Adjudicator Hopkinson made on 7th December 1998, the adjudicator having upheld the Secretary of State's decision to deport the applicant.
3. The history to be stated very shortly is that the applicant was given leave to enter the United Kingdom in August 1990. He made several applications thereafter for leave to remain which were granted but which expired eventually in August 1993. A number of applications were made thereafter which were either refused or withdrawn and so the fact that is challenged is that he became a so-called overstayer.
4. The application to the adjudicator was based upon immigration rule number 364, formerly 158, which provides that in considering whether deportation is the right course on the merits the public interest will be balanced against any compassionate circumstances of the case. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, deportation normally being the proper course where there has been some overstaying. All relevant facts are to be taken into account and there are eight specific factors to which regard must be had.
5. In a judgment extending over 19 pages the adjudicator carefully analysed the facts of this case. In particular he had regard to a considerable body of evidence, which he accepted, setting out the good works that the applicant has done in the community. I hope he will not think it uncharitable of me if I do not recite it all but it is a very impressive list which is one which, speaking for myself, fills me with considerable sympathy for the applicant now facing deportation. He has made every effort not only to conduct himself in a perfectly upright, proper, hardworking and honest way but he has, moreover, devoted an enormous amount of time in charitable good works and in promoting good race relations in his community. He has been a most model citizen.
6. The adjudicator's approach is set out effectively in his conclusions. They are to this effect:

"In deciding this appeal I have to balance the public interest against any compassionate circumstances. I accept that the appellant's recent marriage is a compassionate circumstance as is the interest of the community in the loss of someone who has made such a significant contribution. I take into account all the representations made on behalf of the appellant both written and oral..."

7. Pausing there, it seems to me plain that the adjudicator was taking into account compassionate circumstances and, as he put it, the interest of the community which could not be other than a public interest factor. He directed himself to paragraph 364 of the rules. He noted deportation was normally the proper course and he said:

"The question before me therefore becomes what weight I should attach to the compassionate circumstances and the representations."

8. I add in parenthesis representations adverse to the community's interest in losing someone of his worth and value. He set the mark. Then he continued, having regard to the appellant's character and conduct in relation to his immigration status. He found that he had been determined to prolong his stay in the United Kingdom as long as he could and he concluded in this way at page 33:

"I have to weigh up all the facts and circumstances in the case and strike a fair and proper balance noting that deportation is normally the proper cause where a person has remained without authority. Despite the appellant's contribution to the community in which he has been living, his recent marriage, the effect his departure will have on the organisations and the community in which he has been involved, the compassionate circumstances and the representations made on the appellant's behalf, I do not consider that these matters sufficiently outweigh the public interest in effective Immigration Control.

Against that decision he appealed to the Appeal Tribunal. They noted Mr McGregor's submissions to them, repeated to us, and they summarised his argument in paragraph 10 on page 10 as follows:

"It seemed to us that Counsel was arguing that there should be some sort of two stage balancing process. First one should consider what is the public interest in a particular case by setting the importance of control against the benefits to the community and then having arrived at some watered down version of public interest then set against that in the balancing act remaining all the compassionate circumstances of the case."

9. It is true that they did not seem to me to express a view on that submission of Mr McGregor. He has repeated it to us today in eloquent and moderate terms and I am grateful for his submissions but for my part I reject that approach. It seems to me that all that occurred in Regina v Immigration Appeal Tribunal ex parte Bakhtaur Singh [1986] WLR 910 that can be used confidently to assert his authority is that the House of Lords disapproved that part of the judgment of this court which suggested at 916G that:

"The only circumstances which the opening words of paragraph 154 (now the current 364) is contemplating as being capable of being against deportation are 'the compassionate circumstances of the case.'

That is the judgment of this court which was disapproved, and as I read the terms of the speech of Lord Bridge of Harwich he seems to be suggesting at 919G that:

"The only matters which the law requires, or indeed permits, to be taken into consideration either by the Secretary of State or by the appellant authorities in deciding whether or not in any particular case to make a deportation order are matters relevant to the proper exercise of the statutory discretion. ... But to attempt to draw in the abstract precise boundary lines which, in this sensitive are of administration, separate the relevant from the irrelevant would be both an unprofitable and a dangerous exercise. Relevance can only be determined in relation to the facts of particular cases."

10. And then at 920 D:

"The question what weight to be attributed to third party interests of the kind I have been discussion which would be adversely affected by a decision to deport is entirely a matter for the Secretary of State or the appellate authorities exercising discretion under the statute and must depend upon all the other relevant circumstances in the context of which the decision falls to be made."

11. As I read this speech, the House of Lords were disapproving of an approach to these matters which exclude relevant tactics such as the third party interest in this case weighing in the scales. For my part I do not see how one can properly conduct a balancing exercise by putting into the public interest side of the scale from the point of the view of the appellant the adverse public interest being effective immigration control, and having put some weight onto that side of the pan then again to remove them by having regard to the public interest in this good man remaining to do good works in the community, and then having removed certain weights from that scale and then put into it the compassionate factors which are separate. It seems to me that there is really only one way in which a balance can be struck in accordance with the rules to determine what the outcome should be. The factor against the applicant there was the need for effective immigration control. Mr McGregor does not contend otherwise, and then go into the opposite pan all the public interest factors to weigh the scale down on that side and all the compassionate circumstances to weigh it down even further, and then the balance is to be struck.
12. It does not seem to me to matter whether you engage in a two-stage process or a single process. The weighing factors must all count the same and should not affect the balance at the end of the day. Therefore ultimately I agree with the approach of the Appeal Tribunal. They concluded at paragraph 11:

"It is entirely clear from the determination that the Adjudicator took into account in this case every factor known to him and was meticulous in considering judicially the exercise of discretion before concluding as to whether upon the merits deportation was the right course in this particular case."

13. In my judgment that is exactly what the adjudicator did. He had regard to the relevant factors. He was entitled to put in the scales. The fact that the applicant was an overstayer was a material fact but not a determinative fact for it applies necessarily in every case where deportation is being considered. I see no error in the factors he choose to take into account and the weighing of them was essentially a matter for him.
14. I conclude, as I began, that I have much sympathy for this applicant and it is a pity that our community is not always as well served as he has served it but that is not my decision. My decision is whether or not there was an error in law. I cannot see it and therefore I cannot interfere with the balance that was struck. Unfortunately for Mr McGregor it means that his application must be dismissed.
15. LORD JUSTICE OTTON: I agree.
(Application for permission to appeal refused)