COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Appeal No. TH/43669/031
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE GAGE
| MARIO MENDES MACHADO
|- and -
|SECRETARY OF STATE FOR THE HOME DEPTMENT
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Mr Jonathan Swift (instructed by The Treasury Solicitor) for the Respondent
Crown Copyright ©
Lord Justice Sedley :
(b) a decision taken on one or more of the relevant grounds must be based exclusively on the personal conduct of the individual in respect of whom the decision is taken;
(c) a person's previous criminal convictions do not, in themselves, justify a decision on grounds of public policy or public security;
(f) a person is to be informed of the grounds of public policy, public security or public health upon which the decision taken in his case is based ….
The appellate jurisdiction and ECHR art. 8
Such an appeal may in particular be made on the ground that, in taking the decision, the decision-maker acted in breach of that person's human rights.
The regulation goes on to provide that appeal shall be to an adjudicator and that Sch 4 to the 1999 Act, to the extent scheduled to the Regulations, shall govern such appeals. Sch.2 to the Regulations incorporates para. 21 of Sch 4 to the Act, which provides:
(1)… an adjudicator must allow an appeal if he considers
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
What constituted the decision?
"The Secretary of State has considered the offence of which you have been convicted and is satisfied that you would pose a threat to the requirements of public policy if allowed to remain in the United Kingdom. He has therefore decided that your removal would be conducive to the public good."
The issue of law
Did the IAT correctly apply the test?
"14. It was submitted … that the Secretary of State had not taken into account anything other than the fact of the criminal conviction…"
Whether or not this was so, it was for the adjudicator, having directed himself properly in law, to answer the question set out in paragraph 24 above.
28. We will deal first with the question of whether or not the deportation order is justified under Article 3 of 64/221/EEC on the basis of public policy or public security. It is not disputed between the parties that the appellant's wife is a worker in this country and that therefore he has rights to remain as the spouse of a worker. Although the Secretary of State now does not pursue the original claim made in the letter of 29 April 2003 that the marriage of convenience, nevertheless we consider that he would be entitled to take into account, as indeed the Adjudicator and the Tribunal is entitled to take into account, the circumstances giving rise to this claim under the Regulations. In the case of Carpenter v Secretary of State to which we have been referred, the court states in paragraph 74:
'Finally, the question of the risk of abuse should be considered, in particular the possible risk that the national rules of residence concerning the legal position of spouses of nationals who are nationals of non-member countries could be evaded by the spouse who is a national being tempted to "create" a Community connection. Thus it may be argued that the nationals of a member state might, for example, take up employment – even only for a short term – in another member state precisely in order thereby to "bring" themselves and the non-member country spouse within the scope of Community law. It might further be argued that the spouses who are nationals of non-member countries would thus be removed from the exclusive application of national law and would retain a legal position which might be more favourable than under national law, by thereby being given the possibility of residence based on Community law.'
29. It is to be noted in this case that the appellant entered this country illegally, made his claim to asylum, but did not attend the hearing of the asylum appeal, was not represented there and, upon an adverse decision being given by the Adjudicator, went to ground in 1997 and did not merge until 2002 when he was convicted on criminal offences. During the intervening period he had developed a relationship with the woman who is now his wife and who he married after his conviction and the serving of a notice of intention to remove by the Secretary of State. He then pursued a claim under Article 8 which was dismissed, whereupon his wife then decided to take Irish nationality, thus enabling him to establish the present claim under European regulations. Whilst it may be that the marriage is a valid marriage and a bone fide one, the action of the wife in taking Irish nationality when she was already employed as a UK citizen in Sheffield, and continuing that employment after her change of nationality, must lead to suspicion that this act on her part was merely to enable a third claim to remain in this country to be established.
30. The court in Carpenter made it clear that the rules are established in order that citizens of the various countries in the European Union my have a right to work within any country within that Union and that they have the right to be accompanied by their spouses. That is a perfectly valid object but if artificial situations are created by the citizens, this can only be an abuse of the Regulations; a situation which the court in Carpenter clearly deprecates.
31. We do not agree with Mr Draycott's submission that the Secretary of State has concentrated entirely upon the question of the appellant's criminal record when coming to his decision. The letter of 29 April 2003 sets out other matters which have been taken into account by the Secretary of State including compassionate circumstances, the Article 8 claim and the appellant's record which would include the fact that, following an adverse decision on his asylum claim, he went to ground. He started cohabitating with Mrs Machado prior to his convictions and, as Mrs Giltrow points out took no steps to regularise his status in this country, knowing at any time, as she must have known, that his status was that of an illegal entrant. He married her after he was convicted, made and had failed an Article 8 claim, whereupon his wife changed her nationality which gave rise to a third claim to remain, the one currently under appeal. So far as public policy is concerned, the whole background and the attitude of the appellant towards regularising his position in this country must clearly be considered and in our view has been considered by the Secretary of State.
32. So far as the criminal convictions are concerned, it is argued that they are not of such seriousness as to warrant a decision based upon public policy to deport the appellant. The sum of £8000 may not be a considerable sum of money but the manner in which it was obtained shows clearly a deliberate policy of defrauding the government and the public from whose pockets come the social security benefits. These claims were made under no fewer than three false identities. Further more, and we think of some importance, is the fact that prior to this conviction, the appellant had been convicted of motoring offences and of violence towards a constable. The motoring offences may not of themselves be of great importance, being those of driving whilst prohibited from so doing, but the consequences of this apparent total disregard not only for court orders but for the law of the country, could be far reaching. The fact that the appellant has a conviction which precludes him from driving and then continues to drive, must mean that he was uninsured and, were he to commit such an offence again, he would still be uninsured. Were he to drive again against the prohibition and without insurance, and were he to have an accident which could result in serious injury to innocent members of the public , there could be no question of those being injured being able to seek any financial redress because there would be no insurance company to pay upon a claim. It cannot seriously be contended that there would be any merit in pursuing a civil claim against the appellant. The appellant has behaved with wanton disregard for the laws of this country and has been convicted both in respect of the fraud and of the motoring offences and, so far as the motoring offences are concerned, has disregarded the court's orders
33. It has been argued by Mr Draycott that the Adjudicator has not paid proper regard to the probation officer's report. We disagree. We consider that his statements in paragraphs 49 and 50 that 'However the appellant has used several identities in the offences of criminal dishonesty and with regard to the disqualified driving offences and that he has committed those offences at a time when he knew the lady was to become his wife' does take full account of what the probation officer states. It is apparent that the appellant and his wife attended a session with the probation officer and gave an assurance to him that the appellant would hereafter lead a blameless life. The probation officer appears to have accepted that statement at its face value but the appellant's past record, in particular that of adapting several identities in relation to criminal activities does not fill one with any confidence that the assurance given to the probation officer is of much value. The probation officer accepted it at its face value without any evidence from psychiatrists or those who have been responsible for the appellant in the course of custody; the assurance given is worth nothing more than its face value.
"Mario Machado was released from HMP Doncaster on 27 March 2003 and I have supervised his Automatic Conditional Licence. The licence expired on 31 July 2003. Mr Machado reported as per National Standards and co-operated fully with the terms of his licence. He appeared eager to obtain work, but was unable to do so due to the restrictions of his situation. I visited his home on one occasion and on several visits to the office he was accompanied by his wife.
There were no concerns that Mr Machado would re-offend during the licence period and in my professional opinion the risk of him re-offending in the future is low. In my dealings with him I always found him good humoured and communicative, willing to answer questions about his past and present life and seemingly determined to live a responsible and law-abiding life with his wife and her children by a previous relationship."
49. Whilst I have considered the submissions made that the appellant is unlikely to become involved in for the criminal offences, the offences that the appellant became involved in and pursued over such a substantial period of time are serious offences. I note that there is a letter from the support services that indicate in their opinion the appellant is unlikely to commit further offences. However the appellant has used several identities in the offences of criminal dishonesty and with regard to the disqualified driving offences.
50. The appellant has committed those offences at a time when he knew the lady that was to become his wife.
Lady Justice Arden:
" 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,  3 WLR 675 the Privy Council adopted a three-stage test. Lord Clyde observed 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."' (See  1 AC 69 at 80,  3 WLR 675 at 684.)
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach (see Professor Jeffrey Jowell QC 'Beyond the Rule of Law: Towards Constitutional Judicial Review'  PL 671; Craig Administrative Law (4th edn, 1999) pp 561–563; Professor David Feldman 'Proportionality and the Human Rights Act 1998' in The Principle of Proportionality in the Laws of Europe (1999) pp 117, 127 et seq). The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. 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 in as much 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  1 All ER 257 at 263,  QB 517 at 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Ex p Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969 (the convention)) (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v UK (1999) 29 EHRR 493. The court concluded (at 543 (para 138)):
'the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court's analysis of complaints under Article 8 of 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.
 The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell has pointed out, the respective roles of judges and administrators are fundamentally distinct and will remain so (see  PL 671 at 681). To this extent the general tenor of the observations in R (Mahmood) v Secretary of State for the Home Dept  1 WLR 840 are correct. And Laws LJ (at 847 (para 18)) rightly emphasised in Mahmood's case 'that the intensity of review in a public law case will depend on the subject matter in hand'. That is so even in cases involving convention rights. In law context is everything."
Lord Justice Gage:
"Turning to the Article 8 claim, we would accept that a private and family life has been established in this country, as the Adjudicator has done. It is therefore a question of whether, in order to maintain a proper immigration policy, it would be disproportionate for the Secretary of State to deport the appellant. We bear in mind the cases of Razgar  INLR 543, Edore  INLR 361, Djali  EWCA Civ 1371 and the recent determination of the Tribunal in the case of M  UKIAT 00024 which established the principle that it is not within the powers of an Adjudicator to substitute his views for those of the Secretary of State, that the function of the Adjudicator and the Tribunal is only to consider whether the decision of the Secretary of State is one within a range of reasonable responses".
ORDER: Appeal allowed. Case remitted to IAT for reconsideration. Respondent to pay Applicant's costs of appeal.