England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19 February 2003

Lord Justice Laws:

INTRODUCTORY

1. This is an appeal against the decision of the Immigration Appeal Tribunal ("IAT") given on 25 June 2002. Permission to appeal on one ground only was granted by Buxton LJ on 5 September 2002. Mr Blake QC for the appellant has also renewed before us his application for permission on one of the other grounds advanced upon which Buxton LJ refused permission to appeal.
2. The genesis of the proceedings is the decision of the Secretary of State made on 4 July 2001 to deport the appellant pursuant to s.3(5)(a) of the Immigration Act 1971, which provides that a person who is not a British citizen is liable to deportation from the UK if the Secretary of State deems his deportation to be conducive to the public good. The Adjudicator dismissed the appellant's appeal against the Secretary of State's decision and the IAT in turn dismissed his appeal against the determination of the Adjudicator, as I have said on 25 June 2002.

THE FACTS

3. I may take the essential facts from the summary in the Grounds of Appeal, which I have adapted slightly:

"The claimant is a Bangladeshi citizen who was granted leave to enter the United Kingdom on 11 August 1994 as Imam to the Bristol Bangladeshi Community, and indefinite leave to remain on 19 January 1998, on the basis of his marriage to a British citizen. The claimant and his wife have two children, aged 5 and 3 years.

On 28 June 2000, the claimant was convicted of three charges of indecent assault of two girls, then aged 11 and 12 (placing his hand under their upper garments). The offences were said to have occurred at the girls' home when the claimant was teaching them Arabic. The claimant was sentenced to 18 months imprisonment concurrent for the offences against the 11 year old girl and 12 months to be served consecutively for the offence against the 12 year old girl. He was made subject to an order for extended supervision under s.44 of the Criminal Justice Act 1991 and was also recommended for deportation. On 6 February 2001, on the claimant's appeal against sentence, the Court of Appeal (Criminal Division) (Pill LJ, Pitchford J and the Recorder of London acting as a judge of the Court of Appeal) set aside the recommendation for deportation.

In doing so the Court of Appeal (Criminal Division) ("CACD") stated:

'13 The appellant committed three offences of indecency with girls while in a position of trust. Whilst serious, as we have observed, they were not the most serious of their type. Inquiries among the families visited by him in Bristol revealed no further complaints.

14 Given the appellant's past character, the offences of which he had been convicted, the consequences to his anonymity of the need to register on release, and the serious hardship which would befall him and his family should deportation follow, it is our judgment that this recommendation was disproportionate to the object of preventing crime in the United Kingdom. The recommendation for deportation is therefore quashed. We do so as the court which is reviewing sentence. It should be understood that nothing we say ties the hands of the Secretary of State.'"

The CACD left the prison sentence undisturbed.

4. Thereafter, as I have said, the Secretary of State for his part decided to deport the appellant under the separate provisions of s.3(5)(a). As is clear from paragraphs 9 - 14 of the IAT determination and the Home Office Explanatory Statement, the Secretary of State had in mind various aspects of the detail of the case in coming to his decision. He considered the appellant's age (30: 23 when he arrived in the United Kingdom), courses he had undertaken in the UK, the duration of his wife's settlement here and the fact that she married the appellant in the knowledge that at the time he had no established right of settlement in the UK, the impact of Article 8 of the European Convention on Human Rights balanced with the public interest in the appellant's removal, and the extent of the risk of his re-offending. In that last regard he observed that the probation report submitted by the appellant's representatives stated that he posed a considerable risk. In light of the issues in this appeal as they were refined in the course of argument, it is convenient to set out the conclusions contained in paragraphs 3.8 and 3.9 of the Explanatory Statement:

"3.8 Furthermore the Secretary of State considers that the concerns raised about the appellant's family life were outweighed by the public interest in preventing such a crime as the appellant had been convicted of and considers that any interference with family life as a result of removal is therefore proportionate in pursuit of a legitimate aim under Article 8(2).

3.9 The Secretary of State took a grave view of the offences of which the appellant has been convinced. The appellant had been given a position of great trust, confidence and influence. He had abused the trust of the community, the parents of the children involved and worst of all the children themselves. The appellant had also not only been convicted of just one offence but three. In addition the probation report submitted by the appellant's representatives stated that the appellant posed a considerable risk of harm to the public and of re-offending."

I should notice that there are two overt references to the judgment of the CACD in the Explanatory Statement. Paragraph 1.3 of the Statement recites the fact that the appellant had appealed and that the CACD had on 6 February 2001 quashed the recommendation for deportation but confirmed the term of imprisonment; and a copy of the transcript of the CACD's judgment is annexed to the Statement at Annex C.

5. Following the criminal proceedings the Secretary of State made a decision to deport the appellant, purportedly under s.3(6) of Immigration Act 1971 (which I will set out in due course) and pursuant to the recommendation for deportation which had been made by the trial judge. That was an unlawful decision, because by the time it was made the CACD had quashed the recommendation; and an extant recommendation is a condition of the lawful use of s.3(6). I should say at once that there is nothing sinister about this: the Secretary of State cannot have been appraised of the CACD's order when he made the decision. I mention it only because it figured in counsel's submissions as part of the history. Thereafter that decision was revoked and the Secretary of State made the decision under s3(5)(a) which has led ultimately to this appeal.

THE ISSUES

6. Before addressing the determinations of the appellate authorities, in order to set the appeal in its proper context it is convenient to identify the three grounds on which the appellant was to seek permission to appeal to this court. The first was that both the Adjudicator and the IAT erred in treating their own respective jurisdictions as if they were akin to a review process rather than an appeal on the merits. The second was at first put very broadly in counsel's skeleton argument on the permission application: "whether the adjudicator and therefore the IAT erred in failing to identify the nature and the weight of the public interest in deportation, in determining whether there was pressing social need sufficient to justify the interference with family life." However, no doubt in light of the observations made by Buxton LJ granting permission, before us this ground was put on an altogether narrower basis. It amounted to an argument that the appellate authorities (and before them the Secretary of State) had failed properly to take account of the decision and order of the CACD to quash the recommendation for deportation. At the hearing Mr Blake for the appellant and Mr Tam for the Secretary of State between them advanced three different formulations of the right approach to be taken by the Secretary of State and the appeal bodies to the CACD decision; and I shall come to them in due course. The third ground was also at first put widely, to the effect that the Adjudicator and the IAT had failed to take into account, in the context of the case being made for the appellant under Article 8 of the European Convention on Human Rights ("ECHR"), certain detriments which it was said the family would suffer if they had to return to Bangladesh, although these were matters which had been taken into account in consideration of the case put forward under ECHR Article 3. So formulated, the point was not seriously pursued before us. But I do not think it was formally abandoned, and so I should indicate my view that there is nothing whatever in it. It seems entirely plain to me that the Adjudicator had in mind his views and conclusions about conditions in Bangladesh as well in the context of Article 8 as of Article 3. I do not find it necessary to say any more about it. However, ground (3) underwent what I can only call a metamorphosis in the course of the appeal: its new shape consisted in the proposition that the legal inhibitions which restrict the Secretary of State's power to deport (on conducive grounds) an alien who enjoys rights under European Union law should apply with no less force in the case where the putative deportee has no European Union rights at all.
7. Buxton LJ refused permission to appeal on the first ground. With great respect that was plainly right, and Mr Blake (although he characterised it as "the principal issue on which leave to appeal is sought" in his first skeleton seeking permission) has not pursued it before us. Buxton LJ also refused permission on the third ground, both in its original form and its revised form. I shall deal in due course with the latter as it was deployed by Mr Blake before us. Buxton LJ granted permission only on ground (2), stating that he was "not satisfied that the Secretary of State in reaching his decision properly considered the decision of the CACD in this case, or that the Adjudicator or IAT properly understood the law applied by that court".

THE DETERMINATION OF THE ADJUDICATOR

8. The Adjudicator heard evidence from the appellant and his wife, two persons who knew the family (Mrs Tait and Mr Kari), and Dr Gallwey who had provided a psychiatric report on the appellant. There was also a report from the National Probation Service. That had been before the CACD, and indeed (as I understand it) is the same report as was mentioned in paragraph 3.9 of the Home Office Explanatory Statement. In addition the Adjudicator had a report from Dr Werner Menski of the School of Oriental and African Studies at London University. Dr Menski expressed views as to what the appellant and his family might face in Bangladesh were he to be returned there.
9. In dealing with the appeal to him the Adjudicator considered the evidence as to the risk of the appellant's re-offending. The probation report had this passage at paragraph 11:

"Due to the denial of the offences, the risk of [M] re-offending is quite high. Should he have the opportunity to access families in the future, particularly in a position of trust, then I would in my opinion say that the public would be at risk. I have been unable to assess [M]'s motivation to change whilst he continued to deny the offences."

As for Dr Gallwey, the Adjudicator reported his oral evidence thus:

"!0"… he said that the risk assessment of the appellant by the National Probation Service was too narrowly based upon only one factor namely, the appellant's refusal to acknowledge his offences. Other factors such as previous history included whether there had been earlier offences, or drug and alcohol abuse were also relevant. In his opinion there was remorse. The appellant was in depression and needed appropriate treatment. His assessment was that there was a low risk of the appellant re-offending."

At paragraph 16 of his determination the Adjudicator concluded that he accepted Dr Gallwey's assessment.

10. As I have foreshadowed the Adjudicator also had to consider the evidence and arguments relating to the appellant's case that his deportation to Bangladesh would expose him to inhuman and degrading treatment contrary to ECHR Article 3, and would constitute a violation of his right to respect for his family life under Article 8. Dr Menski, whose report the Adjudicator said he had carefully considered, had opined that the appellant and his family would be at serious risk to their physical safety if they were returned to Bangladesh and would suffer what he described as "social ostracism". The Adjudicator rejected the Article 3 case for reasons which he gave at paragraph 18 of his determination. No complaint is pursued as to that aspect of the determination and I need not set out the Adjudicator's text.
11. As for Article 8, the Adjudicator accepted that there would be an interference with the appellant's family life, but held that his deportation would be for a necessary and proper purpose, "the deterrence of crime not solely by the appellant" (paragraph 19). He considered that the essential question was whether deportation would be proportionate to this legitimate aim. After considering authority he concluded that the Secretary of State was entitled to take the view that the appellant's removal from the UK would conduce to the public good (paragraph 22). In paragraph 23 he gave detailed reasons for his conclusion in paragraph 24 that the appellant's deportation would be a proportionate response and that the compassionate circumstances in the case did not outweigh the factors favouring his removal. The argument as to European law which now constitutes ground (3) in the appeal was not before the Adjudicator.
12. In view of the only issue which Mr Blake has permission to argue, relating to the decision of the CACD, I should indicate what the Adjudicator had to say about the judgment of that court. At paragraph 12 he noted the submission of the Home Office Presenting Officer Mr Kamalan to the effect that he "should have regard to the decision of the Court of Appeal quashing the trial judge's recommendation to deport, but that the issues before me were wider…." Then at paragraph 13 he reports the argument put forward by Miss Cronin for the appellant to the effect that "the quashing by the Court of Appeal of the trial judge's recommendation to deport was of significance. It was particularly relevant to recidivism and to the impact on third parties…." The Adjudicator proceeded to express his own view in paragraph 15:

"….As Mr Kamalan conceded I must have regard to it [sc the CACD decision]. The Court of Appeal guidelines for trial judges as to the exercise of their powers under s.3(6) of the 1971 Act first offered in R v Nazari (1980) 2 Cr App R (s) 84, are concerned with a balancing exercise between the possibility that a convicted person may commit further crime in this country against the harm that may be done to innocent third parties if he were deported. The issues which I must consider range rather more widely. It remains a balancing exercise. Where the Secretary of State is minded to exercise his powers of deportation conducive to the public good he must have regard to all those matters which are set out in paragraph 364 of HC 395 [sc. the Immigration Rules made under the Act of 1971] and to all other compassionate circumstances of which he is aware …"

In paragraphs 18 - 24, which contain the Adjudicator's actual decision and reasoning in support (whose effect I have summarised), there is no further reference to the decision of the CACD except a passing and insignificant mention – "as the Court of Appeal Criminal Division said" – attached to the Adjudicator's comment in paragraph 22 that the appellant's sexual offences in themselves fell in the lower end of the scale.

THE DETERMINATION OF THE IAT

13. When the matter went to the IAT Miss Cronin placed heavy reliance on the CACD judgment: paragraph 17. However the text there does not report any distinct submission as to what in law should be the impact of the CACD decision upon the thought processes of the Secretary of State or the appellate authorities. Mr Waite for the Secretary of State submitted that:

"… the Adjudicator's decision, unlike the decision of the Court of Appeal, was taken after hearing submissions by the Secretary of State and after reading the Home Office's explanatory statement, as well as hearing evidence from the appellant and his wife, at first hand, none of which opportunities had been afforded to the Court of Appeal" (paragraph 28).

Here are the IAT's conclusions as to the relevance of the CACD decision:

"41. It must, first of all be noted that the Court of Appeal, in finding that the recommendation for deportation should be quashed, as being disproportionate to the object of preventing crime in the United Kingdom, stated, clearly, that it should be understood that nothing which they said ties the hands of the Secretary of State.

42. Thus, the Secretary of State, in ordering the deportation of the Appellant, cannot be considered to be acting contrary to the decision of the Court of Appeal. The Secretary of State, in ordering the deportation of the Appellant was acting administratively on the basis of the evidence he had before him, taking into account the terms of paragraph 364 of HC 395, the terms of the ECHR and DP3/96. His decision was taken independently….

59. With regard to Miss Cronin's submission that the Adjudicator should have, as stated in Muchai Court of Appeal: [2001] EWCA Civ 932, [sc. an earlier Tribunal determination], have given reasons why he had differed from the Court of Appeal, in their finding that the Appellant should not be deported, we find that the question of whether or not the Adjudicator disagreed with the Court of Appeal did not arise. The Court of Appeal was dealing with a different aspect of the matter, namely whether or not the recommendation for deportation by the trial judge was disproportionate to the objective of preventing crime in the United Kingdom, on the evidence before it, while what the Adjudicator had to decide was whether or not the Secretary of State had properly exercised his discretion, in deciding to deport the Appellant, taking account of the terms of paragraph 364 of HC 395, DP3/96 and Articles 3 and 8 of the ECHR, had heard oral evidence, considered written evidence and had taken account of submissions on the part of the Appellant and the Secretary of State.

60. In our considered opinion, the Adjudicator properly considered the matter before him, took particular account of the decision of the Court of Appeal, by realising that neither he nor the Secretary of State was bound by it, heard and assessed the evidence and came to the conclusion which he did…"

The Tribunal then set out paragraph 24 of the Adjudicator's determination.

THE SOLE GROUND OF APPEAL: IMPACT OF THE CACD JUDGMENT

14. I turn then to ground (2), and the question what as a matter of law the Secretary of State and the appellate authorities ought to have made of the judgment of the CACD. It is convenient first to set out the principal statutory provisions. I have already summarised the effect of s.3(5)(a) of the Immigration Act 1971. Its precise terms so far as relevant are as follows:

"(5) A person who is not a British citizen shall be liable to deportation from the United Kingdom if-

(a) the Secretary of State deems his deportation to be conducive to the public good…"

s.3(6):

"Without prejudice to the operation of subsection (5) above a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of 17, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."

s.6(1):

"Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with for that offence by another court."

15. Now I will identify the positions of the parties in relation to the principal issue, as they have been developed in the appeal. First I should say that it is agreed on all hands that there will be cases in which the fact that the criminal court makes no recommendation, or sometimes even the fact that the CACD quashes a recommendation made at first instance, will have no bearing at all on the Secretary of State's later consideration of his powers under s.3(5)(a). The provisions of s.3(6) and 6(1) might have simply been overlooked. Or the first instance criminal court might decline to make a recommendation because the procedural requirements as to notice (provided for in s.6 of the Act of 1971: I need not set them out) have not been met; or the CACD might quash a recommendation for the same reason. I understand Mr Blake to accept that it is only when the criminal court, at first instance or on appeal, declines to make (or quashes) a recommendation for deportation on the merits that any question arises as to the appropriate response of the Secretary of State or the appellate authorities to that decision. Moreover such a response – whatever its quality – would only be called for if the criminal court had given reasons for its decision not to recommend; without reasons, I would for my part accept that such a decision would and should carry no weight with the Secretary of State. This is a limitation upon the scope of the present debate which needs to be borne in mind. That said, I may proceed at once to indicate how this primary point in the case was first put by Mr Blake at paragraph 35 of his skeleton argument. It was submitted there that "a prior judicial judgment that the recommendation of deportation be quashed because deportation would be disproportionate…. is a mandatorily relevant consideration for the subsequent decision of the Secretary of State to which primary weight should be attached by the decision-maker."
16. This argument was at first adhered to by Mr Blake in the course of the hearing. He submitted that unless the Secretary of State had fresh evidence, or there was a change of circumstances, or there was some material before him not previously considered, he was obliged to follow the CACD, or else explain why after all he chose to deport under s.3(5)(a). However as the argument proceeded, Mr Blake as I understood him was inclined to take what appeared to be a somewhat higher position, according more influence to the criminal court's decision. He submitted that the Secretary of State was only entitled to take a different view on the question whether the deportation was proportionate to the purpose in hand (deterrence in general of crimes of the kind in question, or deterrence only of the immigrant: that difference itself generated debate) if he had new or different material beyond what had been in the contemplation of the criminal court. That was the high point of Mr Blake's submission. It amounts to this: there is a presumption that the criminal court's merits judgment is to be followed by the Secretary of State if or when he later considers the s.3(5)(a) power; and the presumption may only be rebutted in the Secretary of State's decision-making process if he has new material – not necessarily fresh evidence in a strict sense, but some substantial factor that was not considered by the criminal court.
17. For the Secretary of State Mr Tam accepted that his client was obliged to take into account the view of the criminal court, but (a) there was certainly no presumption that he should follow it, and (b) if he chose not to follow it but after all to make a decision to deport under s.3(5)(a), he was not in principle required to give reasons for taking that position.
18. I may state at once my view of this issue. I consider that there is no basis whatever for applying a presumption in favour of the criminal court's decision not to recommend deportation. Such a presumption would bind the Secretary of State unless he has reasons or material not before the criminal court to take a different view. But I consider also that Mr Tam's submission that the Secretary of State should take account of the criminal court's decision, but is under no particular duty to state what it thinks of it, lacks principle. Indeed, with respect to Mr Tam, who could not have put the case better than he did, the position taken is actually incoherent. A duty owed by one decision-maker – A – to take account of the views or decision of another decision-maker – B – upon the same or an overlapping issue means nothing whatever unless A has to engage with what B has said: to explain, however shortly, why he differs from it if he does.
19. In my judgment, therefore, when he comes to his own jurisdiction under s.3(5)(a) in a case such as this, the Secretary of State has to consider the prior reasoning of the criminal court and explain, however shortly, what he makes of it. He may simply state that he agrees with it. In that case he would of course make no decision to deport under s.3(5)(a). If he disagrees with it, he must explain, however shortly, why he disagrees with it. This seems to me to be no more than an elementary application of the Secretary of State's duties of fairness and good administration imposed upon him by the common law. The immigrant/defendant ex hypothesi has persuaded the criminal court distinctly to decide, on reasoned grounds, that there should be no s.6(1) recommendation. Whether the matter is put in terms of a legitimate expectation, ordinary fairness, or the obligation to take a rational approach to the duties of good administration, it seems to be clear that in this specific situation the law imposes upon the Secretary of State a duty to explain – as I have said however shortly – why he is taking a different view from that of the criminal court.

THE CASES: NO IDENTITY BETWEEN THE FUNCTIONS OF THE SECRETARY OF STATE AND THE CACD

20. I should be content to leave the matter there. Much authority however, was cited to us on two fronts. Upon the first, the learning was deployed to do no more than support the proposition that the courts in dealing with putative justifications by government for interfering with ECHR rights, had to apply the principle of proportionality. That is wholly elementary, and I will not take time citing cases to make it good. Secondly, however, authority was laid before us to show that the scope of considerations to be had in mind by the criminal court under s.6(1) was significantly different from those to be confronted by the Secretary of State under s.3(5)(a) (or, indeed, s.3(6)). It is right that I should give a brief review of the learning upon this latter proposition.
21. Nazari (1980) 2 Cr App R (S) 84 is the starting point. That was a case in which the CACD heard a number of appeals together in order to give guidance as to the general principles to be applied by criminal courts in deciding whether to make recommendations for deportation under s.6(1) of the Act of 1971. The judgment of the court was delivered by Lawton LJ. At page 91 Lawton LJ stated that "no court should make an order recommending deportation without making full enquiry into all the circumstances". Then the court's articulation of appropriate guidelines contains these passages (pp. 91 – 93):

"This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records. That is self-evident. The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation…

… the courts are not concerned with the political systems which operate in other countries. They may be harsh; they may be soft; they may be oppressive; they may be the quintessence of democracy. The court has no knowledge of those matters over and above that which is common knowledge; and that may be wrong. In our judgment it would be undesirable for this court or any other court to express views about regimes which exist outside the United Kingdom of Great Britain and Northern Ireland. It is for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consequences which would make his compulsory return unduly harsh. The Home Secretary has opportunities of informing himself about what is happening in other countries which the courts do not have….

The next matter to which we invite attention by way of guidelines is the effect that an order recommending deportation will have upon others who are not before the court and who are innocent persons. This court and all other courts would have no wish to break up families or impose hardship on innocent people…

We wish to state clearly and firmly that all a court does when it makes a recommendation for deportation is to indicate to the Secretary of State that in the opinion of the court it is to the detriment of this country that the accused should remain here. The final decision is for the Secretary of State. No doubt he will take into account the personal circumstances of each person whose case he is considering, and that will include the political situation in the country to which he will have to go if an order of deportation is made. These are matters solely for the Secretary of State, and not for the courts."

22. The decision in Nazari, of course, long pre-dated the coming into force of the Human Rights Act 1998 and the consequent obligation of public authorities, government and courts alike, to uphold and respect the Convention rights and to apply the test of proportionality to any putative justification of interference by the State with those rights. But the proposition that the criminal courts can possess no authoritative view about the internal conditions of a country to which a defendant's deportation is in prospect plainly remains true; as Lawton LJ recognised, such matters are not within the court's expertise. In contrast the Secretary of State has access to many sources of information about subject-matter of that kind, and it is entirely within his sphere of responsibility, as much after October 2000 when the Human Rights Act came into force as before it, to make and to bring to bear a judgment as to the conditions in the relevant country and their likely impact on the immigrant were he to be returned there. And the same is true of the appellate authorities, when their jurisdiction is engaged.
23. More generally, as was acknowledged in Ali Dinc [1999] INLR 256, 262, "the Home Secretary will have much material not before the judge (including as to conditions in the place to which the applicant might be deported), and… he is better placed to take a wider policy-based view on the key question as to whether, in the language of DP/2/93, removal can be justified as 'necessary in the interests of a democratic society'". That view was endorsed in the later case of Samaroo [2001] EWCA Civ 1139 [2001] UKHRR 1150 (decided after the coming into force of the Human Rights Act) in the judgment of Dyson LJ at paragraph 36, where the learned Lord Justice stated:

"The court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences."

24. These materials demonstrate that the Secretary of State in deciding whether or not to apply s.(3)(5)(a) must necessarily have in mind a larger canvas of factors than does the criminal court in approaching its task under s.6(1). That is a circumstance which points firmly against there being any presumption, arising from the criminal court's decision not to recommend deportation, when it comes to the Secretary of State's role under s.(3)(5)(a). Moreover that proposition is, I think, distinctly supported by the observations of Taylor LJ as he then was in Al-Sabah [1992] IAR 223 at 230 - 231:

"Those cases [sc. Nazari and later authorities of the CACD] were all concerned with the correct approach by a trial judge to recommending deportation. They did not purport to define or limit the scope of the Secretary of State's discretion under s.(3)(5)(b) [now s.3(5)(a)] of the Act... In Hukam Saib, Stocker LJ said at page 378:

'…it is to be noted that the case [of Nazari] was an appeal to the Criminal Division of this court, and related to guidelines which the court was laying down (so far as it was possible to lay down general guidelines) for the guidance of courts in making recommendations for deportation. It did not, and did not purport to lay down any guidelines for the exercise of his discretion by the Secretary of State'."

CONCLUSION ON THE APPEAL

25. Thus as it seems to me this whole raft of authority tends firmly to contradict Mr Blake's argument that a considered refusal of a recommendation to deport creates a presumption which touches the Secretary of State's exercise of power under s.3(5)(a). It is also, I think, contradicted by the scheme of the Act of 1971. S.3(5)(a) plainly establishes a free-standing power, whose exercise is entirely within the responsibility of the Executive; s.3(6) entitles the Secretary of State to act on a court's recommendation, and when he does so that is an exercise of power wholly distinct from any decision that may be made under s.3(5)(a). Mr Blake was at pains to pray in aid the decision of this court in Ali Dinc, to which I have already referred. In that case at 262E Henry LJ (with whom the other members of the court agreed) expressed his agreement with the statement made by Sedley J, as he then was, at first instance:

"The judge's recommendation, far from concluding the Secretary of State's task, simply initiates it, albeit starting from a solid starting presumption in favour of deportation."

That with great deference seems to me to be entirely right in the case where a recommendation has been made and the Secretary of State is considering whether to act on it under s.3(6). That sub-section empowers the Secretary of State to order deportation on the basis of the court's recommendation. If the recommendation did not amount to a presumption in favour of deportation, the Secretary of State's function under s.3(6) would effectively be indistinguishable from his function under 3(5)(a). But there is nothing here to suggest the least reason why there should be any presumption to the effect that the Secretary of State, in considering his entirely separate power under s.3(5)(a), should follow the distinct decision of the criminal court not to recommend deportation.

26. But the authorities do not only support my conclusion that there is no presumption touching the Secretary of State's function in the case where the criminal court has made a decision on the merits not to recommend deportation. They are also at least consistent with my view that in such a case the criminal court's judgment is nevertheless a relevant consideration upon which the Secretary of State must bring his mind to bear; and he must decide what he makes of it. There is plainly an overlap between what is for the Minister and what is for the court. Both are concerned to arrive at a proportionate response in considering whether the factors pro deportation outweigh those con; and this is no less so by reason of the circumstance that the Minister has to consider aspects – certainly in-country conditions (see Nazari and Ali Dinc), and perhaps the effects of a more or less draconian use of deportation powers in the deterrence of serious crime (see Samaroo) – which the court is not in truth equipped to pass upon. It must however be obvious that the criminal court is especially well placed to judge the gravity of an offence, and the requirements of sentencing policy. The Secretary of State must confront any conclusion on the merits by the criminal court to the effect that no recommendation be made, and if he is nonetheless to decide to deport under s.3(5)(a), he and the appellate authorities after him must give an account, however short, of the implicit difference of view from that of the court. He is entitled to disagree with the court without recourse to new facts or different considerations.
27. Neither the Secretary of State nor the appellate authorities followed that approach in this case. The Explanatory Statement tells the reader nothing of the Secretary of State's view of the CACD decision. The Adjudicator said he must have regard to it, but one looks in vain to see what he made of it. The IAT seem to have treated it as irrelevant to the s.3(5)(a) exercise. From first to last there is no reasoning that engages the CACD's view. It follows that the IAT decision (which, of course, is distinctly the subject of challenge before us) cannot stand. I would accordingly allow the appeal. If my Lords concur, we must consider what relief should be granted. It may be that counsel will agree that the appellant's statutory appeal should be reheard by a different constitution of the IAT.

THE RENEWED APPLICATION FOR PERMISSION TO APPEAL

28. There remains Mr Blake's renewed application for permission to appeal on ground (3), now effectively limited to the submission based on the law of the European Union. I think it no injustice to the appellant if I deal with this very shortly. The argument runs as follows. By force of Council Directive 64/221/EEC and cases such as Santillo [1980] 2 CMLR 308, 330 (the Court of Justice) and [1981] 1 QB 783, 785 F - H (the Divisional Court), where an alien is present in a Member State of the European Union and is enjoying rights of movement or settlement guaranteed by EU law, it will not be proportionate to any proper legitimate aim for the authorities of that State to deport him on "conducive" grounds arising out of a crime or crimes committed by him, if he himself poses no threat to the community by virtue of any significant risk that he will offend again. In such a case, therefore, the Secretary of State may not deploy s.3(5)(a) for the purpose of general deterrence. Mr Blake accepted some qualification to that position: where the past criminal conduct was in its nature very grave indeed, EU law might require nothing further to be established to justify deportation on conducive grounds: Bouchereau [1978] QB 732, Marchon [1993] Imm AR 384. However, Mr Blake submitted that the present case does not fall into that category. For his part Mr Tam accepted that the scope for the Secretary of State's power to deport on conductive grounds in order to secure general deterrence was at any rate narrower in an EU case than in one where no Community rights were involved. Then Mr Blake proceeded to submit that it would be unjust and (I think he would say) irrational for the court not to apply the same standard or touchstone of proportionality in a case where the criminal immigrant is not exercising EU rights. On the facts of the present case, I think the better interpretation of paragraph 3.8 and 3.9 of the Home Office Explanatory Statement is to the effect that the Secretary of State had both general deterrence, and the deterrence of this individual, in mind in making his decision. Accordingly if Mr Blake is right, the decision taken in this case (and upheld by the appellate authorities) is undermined.
29. Mr Tam starts from the undoubted truth that the present case involves no exercise whatever of rights arising under EU law, and submits that there is no warrant, on principle or on authority, for the court to act as if it did. Of the cases he cited I shall refer only to Manjit Kaur [2001] 1 CMLR 507. In the European Court of Justice Mr Advocate General Leger said at paragraph 28 of his opinion:

"The court has consistently held that the rules governing the free movement of persons 'apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law'."

30. This is a consistent theme of all the relevant learning. Mr Tam's submission is in my judgment plainly right. The legal principles by which the Secretary of State is bound, unqualified as I would hold they are by the law of the European Union, in my judgment permit him to arrive at the decision he did.
31. I would allow the appeal and dismiss the application for permission to appeal.

Lord Justice Jonathan Parker:

32. I agree.

Lord Justice Ward:

33. I also agree.