COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THOMAS J (Samaroo)
OUSELEY J (Sezek)
Strand, London, WC2A 2LL
Tuesday 17th July 2001
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE DYSON
SECRETARY of STATE for the HOME DEPARTMENT
SECRETARY of STATE for the HOME DEPARTMENT
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J. Howell QC and Mr S. Kovats (instructed by The Treasury Solicitor for the Respondent)
Crown Copyright ©
LORD JUSTICE DYSON:
"(a) his marriage and the length of it and his relationship with his wife;
(b) the considerable length of his wife's residence in this country;
(c) the existence of Jonathan and his age, including the fact that he is a British citizen with his own independent right to live here and his relationship to his father;
(d) his step-children in the UK, their relationship to their step-father and the assertion that it is a close family unit;
(e) the length of time since he was last living in Guyana;
(f) the likely impact on the family should they ultimately choose to accompany him to Guyana, bearing in mind that all Mrs Samaroo's close family are here, the fact she is employed here and has responsibilities here;
(g) the evidence as to the effect on Jonathan of the present situation and the impact of future separation;
(h) the assertions as to Mr Samaroo's future prospects in Guyana;
(i) the fact that the family would be separated from Mr Samaroo should the family stay here;
(j) the fact that this was Mr Samaroo's first conviction; and
(k) the descriptions of the efforts and progress made by Mr Samaroo whilst in prison where he has variously been described as a model prisoner with an exemplary prison record."
"In the normal way, both Mrs Samaroo and the children would be given the opportunity to accompany Mr Samaroo upon his deportation. Should the family choose to remain in the UK (as from the documents seems likely) the Secretary of State considers that on the facts of this case any interference with family life is necessary in the interests of a democratic society. This was a serious offence and the detrimental effects of drug importing are well known."
"25. In making this judgment the Secretary of State has borne in mind the provisions of the European Convention on Human Rights. This is the subject of the applicant's third main complaint, to which I now turn.
26. The Secretary of State accepts that the deportation of the applicant would interfere with his family life, particularly if his wife, child and stepchildren did not accompany him to Guyana. On the other hand the Secretary of State regards the maintenance of a firm but fair immigration policy as necessary for the economic well-being of the United Kingdom and for the prevention of disorder and crime. Moreover, he regards the deportation as a valuable deterrent to actual or prospective drug traffickers. As stated above, the Secretary of State regards trafficking in Class A drugs as one of the most serious of offences. Drug trafficking is also an offence which often has an international dimension. Immigration control plays an important part in the fight against drug trafficking. In all the circumstances, and accepting that the applicant personally is unlikely to re-offend, the Secretary of State has concluded that the interference with his family life which deportation would entail is necessary in a democratic society because of the applicant's criminal conduct."
"Since his release from detention on bail in February of this year it seems, from the letter of 7th February, that he has been able to secure employment in the UK. There is nothing to suggest that he will not also be able to secure employment in Guyana and accommodation (if necessary). Indeed, it is plain from the reports of his time in prison that he has a wide range of skills. Moreover, he does not appear to have any health problems which would restrict the type of employment he could secure on return."
"As I stated in my witness statement of 2nd June 2000, the Secretary of State regards trafficking of Class A drugs as one of the most serious offences. In proposed deportation cases the Secretary of State sees a range of offences many of which are serious but do not necessarily have the same impact on the wider community as does the importation of Class A drugs. To protect the interests of those resident in this country from the harmful effects of drugs and in the interests of preventing disorder and crime, as a matter of general policy, the Secretary of State does not tolerate the continued presence in this country of those convicted of being concerned in the importation of Class A drugs. Each case must be considered carefully, however, with regard to the impact on the individuals involved resulting from any deportation. The Secretary of State has considered this case carefully and has put in the balance the points made on behalf of Mr Samaroo and his family. However, although Mr Samaroo points to various compassionate factors which are cumulatively strong, the Secretary of State has concluded that enforcement action remains appropriate. The Secretary of State has had regard to the fact that the sentencing judge considered it appropriate to make a recommendation that Mr Samaroo be deported. In so doing he had in mind the domestic effects of the sentence. Although the Secretary of State does not regard any such recommendation as determinative it is a matter to which he considers some weight should be given. The Secretary of State has however given particular weight in this case to the fact that Mr Samaroo was not simply a carrier of the drugs. He was a crucial part of the organisation. Indeed without those like Mr Samaroo and the role he played, as described by the trial judge, "it would be difficult for foreign businessmen to arrange smuggling of this sort". The Secretary of State attaches great weight to this element in the balance. He considers that the deportation of Mr Samaroo assists in the protection of the interests as outlined above. In his view the interference with the Convention rights in this case is indeed necessary in a democratic society for the protection of those interests."
(a) the offence of which Mr Samaroo was convicted was very serious;
(b) he had been described as a model prisoner during his period in prison;
(c) he was unlikely to reoffend;
(d) he no longer had any meaningful ties with Guyana;
(e) there was nothing to suggest that he would be unable to find work in Guyana;
(f) it was most unlikely that Mrs Samaroo would accompany him to Guyana if he were deported there;
(g) the family had strong ties.
(1) What is the relevant question which the Secretary of State had to ask when deciding whether the interference was necessary for the prevention of disorder or crime?
(2) What is the task of the court: is it to review the decision of the Secretary of State or to make up its own mind on the relevant question, and substitute its own view if it disagreed with the decision of the Secretary of State?
(3) What is the court's conclusion in the light of the answers to (1) and (2)?
As will become clear, the issue between the parties on (2) is now much narrower than it was before the judge.
What was the relevant question for the Secretary of State?
"Is the proposed interference with the family in the circumstances of this case no more than is necessary to pursue the legitimate object of prevention of crime and the protection of the health of others by deterrence of others?"
"Article 8(1) gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of his right under Article 8(1) to an extent much greater than necessity requires."
"27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p.80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review."
"First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights."
"41. The Court acknowledges that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens and notably to order the expulsion of aliens convicted of criminal offences.
However, their decisions in this field must, in so far as they may interfere with a right protected under Article 8(1), be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. In determining whether the interference was "necessary", the Court makes allowance for the margin of appreciation that is left to the Contracting States in this field.
42. Its task consists of ascertaining whether the deportation in issue struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the prevention of disorder or crime, on the other."
"…the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights….The search for this balance is inherent in the whole of the Convention…."
The task for the court
"44. For these reasons, it is my view, on the present authorities, that the task of the court is not to make up its own mind on the question of proportionality. The decision-maker is the Secretary of State and it is he who must decide within his discretionary area of judgment whether the interference with family life by deportation is necessary in a democratic society, that is to say justified by a pressing social need, and in particular proportionate to the legitimate aim pursued. In that decision making process, he has in accordance with the Convention and the Human Rights Act, a discretionary area of judgment in achieving the necessary balance.
45. The task of the Court, in accordance with the jurisprudence of the European Court of Human Rights, is therefore supervisory of that discretionary area of judgment. The court must decide whether the Secretary of State has, within the discretionary area of judgment accorded to him, struck a fair balance, between the relevant interests, namely the applicant's right to respect for his private life and family life, on the one hand, and the prevention of crime and disorder, on the other. It will do so by subjecting his decision to intense and anxious scrutiny on an objective basis to see whether he could reasonably have concluded that the interference was necessary to achieve one of the legitimate aims set out in Article 8.2 and was proportionate. It is a task analogous to that considered by Lord Cooke of Thorndon in R v Chief Constable of Sussex ex p International Traders Ferry Ltd  2 AC 418 at 452-3. The burden, as Mr Howell for the Secretary of State accepted, is on the Secretary of State to persuade the Court that he has so acted."
"(1) Even where human rights were at stake, the role of the court was supervisory. The court would only intervene where the decision fell outside the range of responses open to a reasonable decision-maker. (2) In conducting a review of a decision affecting human rights, the court would subject the decision to the most anxious scrutiny. (3) Where the decision interfered with human rights, the court would require substantial justification for the interference in order to be satisfied that the response fell within the range of responses open to a reasonable decision-maker. The more substantial the interference, the more that was required to justify it."
"The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it is permitted by law—in this instance the Human Rights Act 1998. In performing this exercise the court will bear in mind that, just as individual states enjoy a margin of appreciation which permits them to respond, within the law, in a manner which is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention"
"When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention."
"In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
"..better placed to take a wider policy based view on the key question as to whether in the language of [the guidance known as] DP/2/93, removal can be justified as necessary in the interests of a democratic society."
I respectfully agree.
"The offence indisputably constituted a serious breach of public order and undermined the protection of the health of others. In view of the devastating effects of drugs on people's lives, the Court appreciates why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge (see the Dalia v France judgment of 19 February 1998, Reports 1998-I, p.92 *54). Although the applicant's removal from Germany would involve considerable hardship, the Court considers, in the light of the foregoing, and taking into account the margin of appreciation left to the Contracting States in such circumstances (see the Boughanemi v France judgment of 24 April 1996, Reports 1996 II, p 610, *41), that the decision to expel the applicant was not disproportionate to the legitimate aims pursued. There is therefore no appearance of a violation of Article 8."
"The court recalls at the outset that Contracting States have the right, as a matter of well established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge"
"1. …. a Turkish worker duly registered as belonging to the labour force of a Member State:
- shall be entitled in that Member State, after one year's legal employment to the renewal of his permit to work for the same employer, if a job is available;
- shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment service of that State, for the same occupation;
- shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.
2. Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absence on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment.
3. The procedures for applying paragraphs 1 and 2 shall be those established under national rules."
"The provisions of this section shall be applied subject to limitations justified on the grounds of public policy, public security or public health"
(1) Does Mr Sezek have rights under the third indent of Article 6(1) of Decision 1/80 in that, by the time of the deportation order, (a) he had enjoyed at least 4 years of legal employment, and (b) he was "duly registered as belonging to the labour force" of the United Kingdom? (2) If yes, was deportation justified under Article 14 (1)?
Does Mr Sezek have rights under the third indent of Article 6(1)?
Four years employment
"We have consulted our existing records and established that Memet Sezek was employed in our restaurants from 1st May 1986 to 24th December 1990 inclusively. Mr Sezek left his employment in our restaurants voluntarily to start his own restaurant business during the Christmas period of 1990"
"Tax Year Contributions Earnings Factor Credit
.. .. .. ..
1986/87 Nil 1406.00 37 Unemployment"
1987/88 178.50 Class 1 2550.00 Nil
1988/89 291.20 Class 1 4160.00 Nil
1989/90 309.14 Class 1 4780.00 Nil
1990/91 115.60.Class 1 2828.00 18 Unemployment"
Duly Registered as Belonging to the Labour Force
"38. The Court has held, however, that Article 6 of Decision No 1/80 relates not only to the situation where a Turkish worker is in active employment but also to the situation where he is incapacitated for work, provided that his incapacity is only temporary, that is to say it does not affect his fitness to continue exercising his right to employment granted by that decision, albeit after a temporary break in his employment relationship (see Bozkurt, cited above, paragraphs 38 and 39).
39. Thus, while the right of residence as a corollary of the right to join the labour force and to be actually employed is not unlimited, the rights granted by Article 6(1) of Decision No 1/80 are necessarily lost only if the worker's inactive status is permanent.
40. In particular, while legal employment for an uninterrupted period of one, three or four years respectively is in principle required in order for the rights provided for in the three indents of Article 6(1) to be established, the third indent of that provision implies the right for the worker concerned, who is already duly integrated into the labour force of the host Member State, to take a temporary break from work. Such a worker thus continues to be duly registered as belonging to the labour force of that State provided that he actually finds another job within a reasonable period, and therefore enjoys a right to reside there during that period.
41. It follows from the foregoing considerations that the temporary break in the period of active employment of a Turkish worker such as Mr Nazli while he is detained pending trial is not in itself capable of causing him to forfeit the rights which he derives directly from the third indent of Article 6(1) of Decision 1/80, provided that he finds a new job within a reasonable period after his release.
42. A person's temporary absence as a result of detention of that kind does not in any way call into question his subsequent participation in working life, as is moreover demonstrated by the main proceedings, where Mr Nazli looked for work and indeed found a steady job after his release."
"30. Nevertheless, a Turkish worker such as the appellant in the main proceedings must be able, for a reasonable period, to seek effectively new employment in the host Member State and must have a corresponding right of residence during that period, notwithstanding the fact that he himself terminated his previous contract of employment without entering immediately into a new employment relationship.
31. As the Commission has convincingly argued, to give full effect to the third indent of Article 6(1) of Decision 1/80 a Turkish worker must, after at least four years of legal employment in a Member State, be entitled to leave his employment on personal grounds and, for a reasonable period, seek new employment in the same Member State, since his right of free access to any paid employment of his choice within the meaning of that provision would otherwise be deprived of its substance."
"38. The second sentence of Article 6(2) relates to periods of inactivity due to long-term sickness or involuntary unemployment, that is to say, where the failure to work is not attributable to any misbehaviour on the part of the worker (as also follows from the use of the adjective 'unverschuldet' in the German version). It provides that, although periods of inactivity of this type cannot be treated as periods of legal employment, they do not affect rights which the worker has acquired as the result of preceding periods of legal employment.
39. The sole purpose of this latter version is therefore to prevent a Turkish worker who recommences employment after having been forced to stop working because of long-term illness or unemployment through no fault of his own from being required, in the same way as a Turkish national who has never previously been in paid employment in the Member State in question, to recommence the periods of legal employment envisaged by the three indents of Article 6(1) "
LORD JUSTICE THORPE: