England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		14 October 2005

1. LORD JUSTICE CHADWICK: I will ask Lord Justice Laws to give the first judgment.
2. LORD JUSTICE LAWS: This is an appeal with permission granted by Latham LJ on consideration of the papers on 11 April 2005 against the decision of the Immigration Appeal Tribunal ("the IAT") notified on 27 January 2005 when they allowed the Secretary of State's appeal against the earlier determination of the adjudicator who in his turn had on the May 2003 allowed the appellant's appeal against decisions of the Secretary of State to refuse his claim to remain in the United Kingdom on grounds of his marriage to a British citizen, and also to deport him. The adjudicator held that these decisions involved violations of the appellant's rights under Article 8 of the European Convention on Human Rights.
3. The issue on the appeal to the adjudicator was whether deportation of the appellant would on the facts amount to a disproportionate measure for the maintenance of fair but firm immigration control. Thus it was accepted that deportation would involve an interference with the appellant's private or family life within the meaning of Article 8(1) of the Convention; the question of proportionality arose of course in the context of the Secretary of State's seeking to justify that interference pursuant to Article 8(2).
4. The facts of the case are conveniently summarised by the IAT as follows:

"3. The claimant was born on 15 April 1960. He is a citizen of South Africa. It appears that he entered the United Kingdom on 13 October 1992. On 15 December 1992 he was arrested in connection with the attempted importation of herbal cannabis on a very large scale. His trial was concluded on 20 October 1993 when he was convicted of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of cannabis and he was sentenced to ten years imprisonment. The value of the cannabis that was the subject of the charge or charges against him is not known but it appears to have been over £250,000. The judge concluded after a drug trafficking hearing that the claimant had benefited from his drug trafficking in the sum of £1,026,646.02. He was ordered to forfeit that sum and in default of payment of it he was sentenced to an additional six years imprisonment. For a further offence involving the importation of drugs he was sentenced to six years imprisonment concurrent. On 23 November 1993 the Crown Court recommended that a deportation order be made in respect of him and such an order was signed by the Secretary of State on 7 November 1994.

"4. During the early stages of his imprisonment the claimant met the lady who is now his wife. She was then a teacher in the prison. They married on 17 October 1996 whilst he was still a prisoner. They had hopes that he would be released in December 1997 but in fact that release did not occur because of his failure to pay any part of the sum that had been forfeited when the original sentence of imprisonment had been imposed. It is not necessary in this determination to go into whether it was appropriate to impose this additional period of imprisonment; on the face of it it would appear that it was, but it may be that the claimant and his wife were given a false impression as to when he was likely to be released and that this had a very profound effect, particularly on his wife.

"5. His wife had suffered from ME since about 1994 but her health was improving and she and the claimant were looking forward to leaving the UK to go to South Africa at the expiry of the sentence in December 1997. These plans had suddenly to be cancelled when it became plain the claimant was going to have to serve an extra substantial period of time in prison. This blow caused his wife's ME to reappear and indeed to get worse.

"6. The feeling of injustice that the claimant and his wife felt about the postponement of his release from prison also led to litigation including an application for Judicial Review. The claimant was eventually released on 13 June 2000. By this time his wife's medical condition was such that she was in receipt of Disability Living Allowance, in respect of mobility at the higher rate, and as to the care component at the middle rate. She is still in receipt of disability living allowance and as far as one can tell this is to continue on an indefinite basis. We should point out here that she attended the hearing before the Adjudicator and gave evidence and was also able to attend the hearing before us, although she was not called upon to give evidence at that hearing.

"7. When the claimant was released he was allowed to work and quickly found employment in Darlington. He started work as a barman and then took employment in the Leisure Services Department of Darlington Borough Council. From all the material that we have seen, which includes a large number of testimonials from prominent citizens in Darlington, including the Member of Parliament, it is plain that the claimant has not been involved in any form of criminal activity since his release, and that he has worked hard and well and has proved himself to be a valuable member of the local community.

"8. A letter from the Councillor Long dated 26 March 2003 states that from the time he was employed by the Council he was impressive as a worker, was swiftly promoted and was at that date in charge of parks and open spaces in the Borough controlling a budget of over a million pounds.

"9. It is not necessary to go through the many testimonials that we have seen in detail; we have considered them, and we are of the view that what they show is that this claimant has turned away from his criminal past, has worked hard and well since his release from prison and has achieved promotion to a position of real responsibility in Darlington. He is plainly trusted by those with whom he works and there is nothing to suggest that he has abused that trust in any way since his release from custody.

"10. The medical condition of his wife is plainly difficult because ME is a distressing and debilitating disorder but it was not submitted to us that the Adjudicator's findings of fact at paragraphs 35(o) to (q) where wrong and in those circumstances it seems to us that her medical condition, whilst a factor to be taken into account, is not such that she would suffer a very severe relapse or would be in a position where she would not be able to obtain treatment if the family were to move to South Africa:"

I should add that it is clear that the appellant has worked lawfully since his release from prison. It is important to notice that, because the Secretary of State had wrongly stated in his reasons for refusal letter that the appellant was not legitimately in employment in this country. I should also set out paragraphs 35(o) to (q) of the adjudicator's findings of fact, to which the IAT referred at paragraph 10:

"(o) The Appellant's wife suffers from ME; there is no medical evidence that travel to South Africa would be deleterious to her health or that she is not fit to travel to South Africa.

(p) In South Africa the Appellant and his wife would suffer a reduction in their material standard of living; would find it difficult if not [impossible] to obtain health insurance; would find it more difficult than in the United Kingdom to obtain treatment for the Appellant's wife's medical conditions but would not find it impossible to obtain such treatment. Additionally the Appellant's wife would be denied the income which she derives from the Disability Living Allowance.

(q) In South Africa the Appellant's wife would not have the same circle of carers that she has at the present time but would not be denied care either from the Appellant or from replacement carers as the same were recruited."

5. The IAT proceeded to cite the judgment of May LJ in N (Kenya) v Secretary of State [2004] EWCA Civ 1094 which, with great respect, I need not replicate. They then proceeded to direct themselves as follows:

"14. The appropriate approach of the Tribunal when dealing with a decision of the Secretary of State, and in particular when deciding what weight to give it, was set out in the starred decision of M (Croatia) [2004] UKIAT 00024."

The Tribunal held at paragraph 23:

"The real question, regardless of whether the Secretary of State considered proportionality or whether the relevant facts have been appraised differently or have changed, is whether, at the date of hearing, a decision that the appellant can be removed is lawful. That means asking whether or not the decision that the appellant should be removed falls outside the range of reasonable responses as to whether removal would be proportionate to the interference with family life."

There follows an extended citation from the M*(Croatia) case ending with this passage:

"28. The starting point should be that if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and Adjudicators should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that the decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances."

Then the IAT's conclusions were expressed as follows:

"17. It was submitted to us that as the Secretary of State had made a mistake in his reasons for refusal letter we should consider the Adjudicator to be the person who had made the initial decision and not allow an appeal from the Adjudicator's decision unless that could be shown to be outside the possible range of findings that an Adjudicator could have made. We reject that submission. It is the Secretary of State whose views must be given primacy in a case such as this because he is in a position to assess the importance of the policies which he has adopted. Even if the Adjudicator was the first person to consider all the facts as they now appear to be that cannot, in our judgment, be deemed to endow him with the same knowledge of the importance of public policy that the Secretary of State has. Neither he nor the Tribunal has that knowledge.

"18. It seems to us that we must approach the Secretary of State's decision by asking ourselves whether, if the Secretary of State had been aware of the facts as we are aware of them, the decision that he has made, is one that was outside the range of reasonable responses that was open to him.

"19. When the question is phrased in this way it seems to us that the answer is clear. Despite the forceful submissions that have been made on the part of the claimant, and despite the fact that without any doubt he has struggled to rehabilitate himself in this country and has worked hard and well and is the main support for his wife for whom removal to South Africa with him will be difficult, it cannot be said that somebody convicted of the type of criminal offence this claimant was, which on any showing was large scale drug dealing with a view to very considerable personal financial benefit could, even by making genuine efforts to rehabilitate himself, acquire a right to remain in the United Kingdom which it would be disproportionate to take away. 19. A very serious crime was committed and we are of the view that the Secretary of State would have been capable of concluding, even on the full facts that we have that deportation justified."

6. The essence of the appeal rests on the proposition that the IAT's approach to the law was erroneous because it was based on the reasoning in M*(Croatia) which has, since the IAT's decision, been specifically disapproved by this court in Huang and Others [2005] EWCA Civ 105. M*(Croatia) was in fact in line with other decisions in this court and the High Court, namely Ala v Secretary of State [2003] EWHC Admin 521, a decision of Moses J (as he then was), Edore v Secretary of State [2003] INLR 361 and Razgar [2003] INLR 543. It appeared from this line of authority that the essential test for the adjudicator faced with an issue of proportionality in the Article 8 context was really a Wednesbury exercise. Was the Secretary of State's view of proportionality in the particular case one that was open to a reasonable decision-maker? There were other points, in particular the question what the approach should be if the Secretary of State had never considered proportionality or considered it on a different factual basis from that accepted by the adjudicator. But the Wednesbury approach was the central theme. In Huang this court felt able to depart from that line of authority by reason of what had been said in their Lordships' House in the case of Razgar [2004] 2 AC 368 which, however, with great respect, I need not cite. In Huang the court held that the M*(Croatia) approach was erroneous. Giving the judgment of the court, I said:

"The true position in our judgment is that the HRA and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.

"60. In such a case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional. This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar, which we have already cited:

'Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.'

"61. We have considered whether the view we have taken of the adjudicator's task in these cases is in conflict with the reasoning of Dyson LJ in Samaroo v Secretary of State. In that case there were two appellants whom the Secretary of State had decided to deport on the ground that their continued presence in the United Kingdom was not 'conducive to the public good'. The first appellant, Samaroo, sought on Article 8 grounds to challenge the Secretary of State's refusal to grant exceptional leave to remain, a deportation order having earlier been made against the appellant. His application for judicial review was dismissed, as was his appeal. In the course of giving judgment Dyson LJ said:

'The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds ...

"Samaroo did not involve the statutory jurisdiction of the adjudicator or the IAT. As we have said the proceedings were by way of judicial review to challenge the refusal of exceptional leave to remain. An application for judicial review is categorically inapt as an arena for a full-blown merits appeal. But Samaroo was in any event in truth a policy case. There were no applicable Immigration Rules. The Secretary of State's position was that the gravity of the appellant's crime outweighed the compassionate circumstances. The case was therefore one in which there was an open question as to the respective weight to be given to private right and public interest. The court was in particular asked to make an assessment, in the context of the case's facts, of the importance attached by the Secretary of State to the desirability of the appellant's deportation in light of his criminal past. In those circumstances the principle of respect for the democratic powers was plainly engaged. Our conclusions in these present appeals march with the reasoning in Samaroo."

7. Here, as I have shown, the IAT followed the M*(Croatia) approach. Given Huang (decided, I repeat out of fairness to the IAT, after the IAT determination) that constituted an error of law. Miss Grey for the Secretary of State in her skeleton argument sought to rescue the IAT's decision by reference to other authority, in particular Samaroo [2001] EWCA 1139 and N (Kenya), to which I have referred, but it is plain from the passage I have cited from the Tribunal's decision which sets out their conclusions that in truth they were following the M*(Croatia) approach which is no longer law.
8. So far so good, from the appellant's point of view. The question remains, however, was the error of law a material one? If it could be demonstrated to our satisfaction that the only lawful conclusion which an adjudicator might arrive at upon the proportionality issue here was that the case was not so exceptional as to entitle the appellant to a favourable decision on Article 8 grounds, then there would be nothing but futility in sending the matter back to the appellate authorities since they would be obliged to arrive at a result adverse to the appellant. The question is, then, whether a properly directed tribunal or adjudicator might hold this to be an exceptional case.
9. I say at once that the features of the case which run counter to the appellant are very formidable indeed. As the Tribunal's recital of the facts shows, this appellant committed very serious drugs offences in this country. He was recommended by the criminal court for deportation under the appropriate provision in the immigration legislation. The Secretary of State's well-settled policy is generally to remove such persons from the United Kingdom, assuming of course that they have no settled right to be here. There is no doubt whatever that these drugs offences, committed though they were some time ago, are not only a proper factor to be considered but a powerful one. It is also to be noted, as Miss Grey submits in her skeleton argument, that the appellant married his wife knowing to say the least that his immigration situation was precarious and that he was liable to be deported. In addition, he has the right to apply in due course for the deportation to be revoked. Further, he has some family in South Africa, from the material we have seen: I think his mother and a brother. The mother lives in sheltered accommodation.
10. On the other hand, his wife has suffered from ME for a very considerable period of time and, to put it at its lowest, would encounter difficulties, possibly quite severe difficulties, if she were to go to South Africa. There is also the fact that he has to a possibly unusual extent rehabilitated himself in the community and especially in his employment since he was released from prison. He has put before us this morning a statement that deals with his work and his marriage. As regards his work it says this:

"7. My career with Darlington Borough Council has been the catalyst in allowing this naturalisation to happen and for this I am eternally grateful.

"8. I have now been with Darlington Borough Council for over 5 years. During which time, I have had many promotions and now my career is to serve the people of Darlington in my role as Operations Manager, Environmental Services Department for essential frontline services that includes direct involvement in our community safety strategy and Community Warden deployment (Community Police).

"9. Apart from delivering services that are essential to our residents I have been elected to lead a project team in a review of services that represent collective budgets of over 70 million pounds.

"10. The project called Street Scene Design is very high profile and will deliver in part:

(i) Business reengineer proposals of the services.

(ii) The integration of the community safety units with frontline services to tackle Anti Social Behaviour.

(iii) A costed implementation plan (iv) Demonstrated annual efficiency saving of £500,000.

"11. The project will terminate in December 2005 after which I will oversee the implementation with a further promotion and increased responsibilities.

"12. The work is ground breaking with service delivery focused on the public need through genuine integration of service and process alignment. These are exciting times for the Borough Council with huge pressures, on the team, led by myself, to make this work. Using what we learn from this pilot, other reforms are planned as part of our Leading Edge agenda with 9 key projects to deliver within a 3-year period.

"13. I have now completed my first year of a Masters Degree in Public Sector Business Administration with the Open University, and have signed up to do the next section during 2006."

There is no material from any fellow officer of the Council or any of the appellant's superiors described in his work. If the matter were to go back to the Tribunal and this evidence were put before it, no doubt it would have to decide what to make of it. There is nothing before us to cause us to doubt the truth of what is said in those paragraphs. But we cannot make a finding about that one way or the other.

11. In relation to his wife, in the same statement the appellant says this:

"17. ... my wife will not be able to join me [he means in South Africa] and nor is it fair for me to expect this. She has already suffered enormously as a result of my criminal label and I just will not allow her to be hurt or disrespected further. She is a British citizen to whom I have been married for 9 years now and she is treated like a criminal herself. I just cannot even begin to understand this.

"18. To add to this, her illness is no better and expecting her to follow me into the abyss is so far from common sense that the mere thought depresses me. I will have no means to provide for her in a country with no meaningful free health care. Due to her illness, she is unable to function let alone work, her life in South Africa can only be a prison to her. She will have no friends or family to support her and there will be no financial support to make her illness or situation bearable, punishing me is at least understandable but to do this to her is inhumane.

"19. In addition, and of importance, is that she is able to be with her mother who does not have very long left to live due to a terminal illness. My wife is unable to come with me to South Africa."

12. Quite apart from anything else, this passage represents or appears to represent what may be a very important change of tack on the appellant's behalf. As I understand it, it was not his case before the adjudicator or the IAT that his wife could not travel with him and stay in South Africa. Certainly she would prefer not to do so, and there will be difficulties and hardships in the way. But he now seems to be saying on the face of these paragraphs that actually it is an impossibility. As I have said, this statement was provided only this morning. The language used is rhetorical, which is understandable but not helpful. Again, if the matter goes back the Tribunal would have to decide what to make of such evidence as this if it were presented to them. There may even be questions as to how far it should be admitted. Miss Grey for the Secretary of State submits that we should view it with a very great deal of scepticism. It seems to me that it does attract scepticism. Miss Grey submits further that we should, so to speak, compartmentalise the case: first consider whether there is really any possibility of a finding that the case is an exceptional one without this fresh evidence and without this change of ground. To that, she roundly submits that the answer must be no; and then, she submits, we should consider what in truth this very late evidence adds.
13. For my part I see very great force in Miss Grey's submissions. There would be a formidable hill for this appellant to climb were the matter to go back. But the question for us is whether there is a possibility that the Tribunal properly directing itself might decide that this was an exceptional case; whether, in other words, it is legally possible that the facts here might disclose an exceptional case of the kind contemplated in Huang.
14. After considering the matter with some anxiety I find myself unable to rule out that possibility. On ordinary principles the appellant is entitled to have his case determined by the proper tribunal according to law. I have already expressed considerable reservations about the merits; but it would not be right for me to go further, because the AIT (as it now is) will have to consider the matter itself. But for my part the judgment I have delivered should not be construed as giving the appellant a fair wind.
15. For the reasons I have given I would allow the appeal.
16. SIR PETER GIBSON: I agree.
17. I am troubled that the appellant has not had his case properly considered in accordance with the law as it has now been established. Accordingly I am persuaded, but only just, that this appeal should be allowed and the order made which my Lord has indicated.
18. But the appellant should be left in no doubt as to the difficulty which he faces in establishing that his Article 8 points make this the exceptional case which the House of Lords in Razgar has decided there must be if the maintenance of the Secretary of State's immigration policy is not to prevail.
19. For these reasons, as well as those given by my Lord, I too would allow the appeal.
20. LORD JUSTICE CHADWICK: The issues on this appeal and the court's approach to those issues have been fully set out by my Lord, Laws LJ. As he has said, the essential question is whether this court is persuaded that it is legally possible that a tribunal properly directing itself could reach the conclusion that the interference with private and family life of the appellant was so exceptional that the application of a fair and firm immigration policy must yield in this case to the individual Convention right of this appellant under Article 8.
21. In the circumstances that both the other members of the court take the view that this appeal should be allowed and the matter remitted to the AIT for further consideration in accordance with the appropriate test, identified by this court in Huang and applied in subsequent decisions - of which Dbeis v Secretary of State for the Home Department is an example - that is the order which will be made.
22. It is unnecessary, and it would be inappropriate, for me to express any view of my own on that question.

(Appeal allowed; no order as to costs).