England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUN & IMMIGRATION TRIBUNAL
[AIT No: IA/04827/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		11th October 2007

Sir Paul Kennedy:

1. This is an appeal from the decision of the Asylum and Immigration Tribunal promulgated on 5 January 2007, and the appeal is brought by leave of this court.
2. The appellant is a native of Nigeria. He first arrived in the United Kingdom in 1986 but returned to Nigeria in 1989. He then came back to the United Kingdom in September 1989 and was given leave to enter for six months as a visitor. In February 1990 he married a United Kingdom citizen, of West Indian origin but born in the United Kingdom, and sought leave to remain on the basis of marriage. That was eventually granted, and he obtained indefinite leave to remain on 27 November 1992. In 1999 he applied for naturalisation, but that was refused because of his criminal record, to which I will turn in due course.
3. In March 2004 he and his wife were tried at Reading Crown Court on offences of dishonesty, and he was convicted of nine offences of handling stolen goods. On 7 April 2004 he was sentenced to three and a half years imprisonment, half of which was suspended. On 7 September 2004 he was invited to put forward reasons why he should not be deported; and at that stage he did not respond save to make a further application for naturalisation, which was again unsuccessful.
4. On 14 April 2005 the Secretary of State gave notice of his intention to deport, and the appellant then, as he was entitled to, appealed. That appeal came before Immigration Judge Kaler in October 2005, her decision being promulgated on 14 October 2005. The immigration judge was aware that the conviction at Reading was not the appellant's only conviction. In August 1999, at Luton Crown Court, for offences of deception, the appellant had received 6 months imprisonment; and he had also been convicted in Denmark in 1997. As to the Reading offences, the judge did not see the indictment; but she knew that the offences, and I quote,

"…appear to relate to (i) handling cars and tiles (value in excess of £8,000) which were found at the Appellant's home and (ii) stolen or cloned credit cards, also found at his home, which had been used to run up debits in excess of $52,000."

5. On the credit side, the judge knew that the appellant and his wife had two daughters aged nine and three, and that the appellant also had a daughter aged thirteen from another relationship. The appellant saw that child regularly, and, as the judge learnt from the appellant and his wife, both of them were prepared to accept the relationship with that child. Both the appellant and his wife gave evidence to that effect.
6. Turning now to the law. By virtue of Section 3(5) and Section 5(1) of the Immigration Act 1971, the Secretary of State can order the deportation of a person who is not a British citizen if he deems deportation to be conducive to the public good. Where such an order is to be made, the person affected has a right of appeal, see Section 63(1) of the 1999 Immigration and Asylum Act. And, by paragraph 21(1) of Schedule 4 to that Act, the adjudicator hearing the appeal has to allow the appeal if he or she considers that the Secretary of State's discretion should have been exercised differently. Paragraph 364 of the Immigration Rules HC395 sets out guidance as to how at that time the discretion was to be exercised. So far as material it reads :

"…in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects…

Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:

1) age;

2) length of residence in the United Kingdom;

3) strength of connections with the United Kingdom;

4) personal history, including character, conduct and employment record;

5) domestic circumstances;

6) previous criminal record and the nature of any offence of which the person has been convicted;

7) compassionate circumstances;

8) any representations received on the person's behalf.

7. For the Secretary of State, it was said to Judge Kaler that the appellant's domestic circumstances had to be weighed against his criminal offending and his unsatisfactory early immigration history, which involved the use of a forged passport and different names. For the appellant, it was pointed out that he had been in the United Kingdom legally for a long time, he had married a United Kingdom citizen, and had three children. His wife and children would not go with him to Nigeria. He had no home there, and his crimes did not involve violence, sex, arson, drugs or terrorism. The immigration judge found that there had been a pattern of offending, and was not impressed by the appellant's assertion that he now intended to lead an honest life. The judge asked herself whether the offences were so serious as to justify deportation, and at paragraphs 31 and 32 of her determination, she answered that question thus :

"…I accept that the offences he was convicted of, recently and in the past, did not involve violence, sex, arson, drugs or terrorism. This is not the case where the seriousness of the offence is so great as to merit automatic deportation. He has however been convicted of serious offences of handling stolen goods and has shown a propensity to re-offend. He seeks to blame unsavoury associations in the past, rather than take responsibility for his actions. The opportunities to offend are still present and I am not persuaded that the Appellant would not re-offend. What he said in court was that he would not do anything that would land him in prison.

32. The courts have found in the past serious offences involving violence, sex, arson, drugs or terrorism as being so serious that deportation is justified. I bear in mind that the offences of this Appellant involved dishonesty and the loss of property. Whilst these are antisocial offences causing inconvenience and financial loss to law abiding citizens, they are not by their nature offences that strike at the heart of the community in the way that offences involving violence, sex, etc do."

8. The judge then looked at paragraph 364 and considered each part of that paragraph separately, before continuing in her determination at paragraphs 34 to 36, thus :

"34. When I consider all these matters in the round, I come to the conclusion that to deport the Appellant falls on the wrong side in the balance. The offences for which the Appellant was sentenced in 2004 were not of so serious a nature that they in themselves merit deportation. The Appellant has not projected himself as a hard working member of the community who has something positive to contribute, but what I have to consider is not whether he is a good or savoury character, but whether deportation would be conducive to the public good. Is deportation necessary to protect the public from serious harm and has the balance been struck right?

35. The combination of two factors is in my mind decisive. These offences are not so serious that the public need protecting from the Appellant to the extent that he needs to be deported. The decision is not proportionate when placed with the fact that he has been living in this country since 1989 and his personal family circumstances.

36. On the totality of the evidence before me, I find that the Appellant has just about discharged the burden of proof and reasons given by the Respondent do not justify the refusal. Therefore the Respondent's Decision is not in accordance with the law and the applicable Immigration Rules."

9. The appeal was therefore allowed. On 17 October 2005 the Secretary of State applied for reconsideration of that decision, contending that the Immigration Judge failed to give adequate reasons, and that there was no evidential basis for deciding that the appellant's wife and children would not accompany him to Nigeria. There was a third ground which was soon abandoned, and I say no more about it.
10. Having considered the matter on paper, Senior Immigration Judge Gill considered that there may have been an error of law, so she ordered a reconsideration. The hearing was on 28 June 2006, and the same judge gave her decision on 11 July 2006. She found that there was an evidential basis for Judge Kaler's finding in relation to the wife and children, but identified a different error of law, saying at paragraphs 11 and 12 of her determination :

"11. At paragraphs 32 of the Determination, the Immigration Judge sought to draw a distinction between offences involving violence, sex, etc which she categorised as offences which strike at the heart of the community, on the one hand, and offences involving dishonesty and the loss of property, which she categorised 'as anti-social offences causing inconvenience and financial loss to law abiding citizens and which do not strike at the heart of the community in the way that offences involving violence, sex, etc do.' By categorising the offences of which the Appellant has been convicted in this way, the Immigration Judge erred in her approach to the balancing exercise. This error in approach was an error of law. The offences of which the Appellant has been convicted (i.e. offences relating to the cloning of credit cards and the handling of stolen goods) which resulted in a term of imprisonmemnt of 3 1/2 years cannot be marginalised in the way the Immigration Judge suggested. Offences of dishonesty and loss of property can range in seriousness from those which are minor and do not strike at the heart of the community (such as shop lifting) and those which are more serious and do strike at the heart of the community. The fact that the Appellant was sentenced to a term of 3 1/2 years is an accurate hallmark of the seriousness of the offences for which he was sentenced in Reading Crown Court. The Immigration Judge ignored the length of the overall sentence imposed on the Appellant by Reading Crown Court as an indicator of the seriousness of the offences in this particular case, and instead focused on a general categorisation of the offences by stating that the offences were 'anti-social offences causing inconvenience and financial loss to law abiding citizens and which do not strike at the heart of the community in the way that offences involving violence, sex, etc do.' Although the Immigration Judge did refer to the seriousness or otherwise of the Appellant's offences at paragraphs 31, 34 and 35 of the Determination, there is nothing which shows that she appreciated the fact that the sentence of 3 1/2 years is a long sentence considering the offences were offences of dishonesty and loss of property. To the contrary, at paragraphs 34 and 35 of the Determination, the Immigration Judge appears to minimise the seriousness of the offences by referring to them as offences 'which were not so serious as to merit deportation'. This is not to say that the offences are so serious that the Appellant cannot succeed under the Immigration Rules. The objection to the Immigration Judge's reasoning is that, by failing to have regard to the length of the sentence as an accurate indication of the seriousness of the offences in this particular case, she erred in her approach to the balancing exercise.

12. At paragraph 36 of the Determination the Immigration Judge stated that, on the totality of the evidence, the Appellant 'has just about discharged the burden of proof' [The words just about are emphasised]. This shows that the error of law was material to the Immigration Judge's decision because, even on the totality of the reasons she gave (which included her reasoning at paragraph 32), she was only able to say that the Appellant 'just about' made out his case under paragraph 364 of the Immigration Rules."

11. Undoubtedly, Senior Immigration Gill had power to order reconsideration on the basis of an error of law not presented to her as a ground of appeal by the Secretary of State. But if she was to take that course, she should have told the appellant's counsel what she had in mind, and given her an opportunity to make submissions. If authority be needed for those propositions, it can be found in AH (Sudan) v The Secretary of State for the Home Department [2006] UKAIT 00038. Unfortunately, Judge Gill only revealed the error of law which she identified in her determination, and that procedural error on her part is Miss Mallick's first ground of appeal before us. Mr Bourne, for the Secretary of State, does not dispute that the error was made, but he contends in his skeleton argument (in my view, rightly) that no injustice ensued because, before the Asylum and Immigration Tribunal at the second stage of the reconsideration, and more particularly before this court, through his counsel, the appellant has had ample opportunity to contend that Judge Kaler did not make an error of law. I would therefore note the procedural order made by Judge Gill, but I would not accept that in this court it should result in any form of relief.
12. The second stage of the reconsideration was heard by the Asylum and Immigration Tribunal, consisting of HHJ's Ievins and Wallace, on 13 December 2006 as a full rehearing. The appellant and his wife gave evidence, and the tribunal said at paragraph 37 :

"…While we found the appellant's wife broadly credible we do not find the appellant credible".

13. At paragraph 38, the tribunal went on to say :

"While we accept that the appellant's wife was sincere in her belief that her husband genuinely wished to turn his life around, we consider that the appellant is still at high risk of re-offending. That was what his Probation Officer said in section 4 of the report because, he said, 'of Mr Okwell's reluctance to take full responsibility for his behaviour'. That was still the appellant's view in his evidence before us. He said he had not felt remorse at the stage that the probation report was prepared, because he was not involved in, as he said, "any issue to do with why I was arrested". Now he felt sorry about it because the things were found in his house. The appellant did not appear to be accepting any responsibility for other people's credit cards being found in his house. He did not even say he knew they were there, but he has been convicted after a jury trial, and his wife has been convicted too, and he cannot go behind the jury's verdict."

14. The tribunal disregarded the appellant's early immigration history, but noted the paucity of his evidence of employment and of United Kingdom roots. As the tribunal said at paragraph 40, the genuineness of the appellant's marriage and of his connection with his eldest daughter were both accepted, but he did have a long criminal record, much longer than the record known to Judge Kaler. At paragraphs 43 to 46, the tribunal dealt with that record, saying :

"43. …It is as follows. On 27 January 1992 the appellant was convicted of one offence of handling stolen goods and three offences of obtaining property by deception at the Bow Street Magistrates' Court. He was fined and ordered to pay costs and compensation. Later that year, on 19 August 1992, he was convicted of handling and aiding and abetting the securing remission of liability by deception by the Brent Magistrates' Court. Again he was fined and ordered to pay costs and compensation. The next offence was five years later. On 17 April 1997 the appellant was convicted of fraud by the Copenhagen City Court in Denmark and sentenced to ten months imprisonment. The appellant said that he had gone to Denmark to buy computers.

44. The next year the appellant was in Australia. He did not give evidence about that but it is there on his criminal record. The appellant makes no mention of it in his statement but we consider that it is quite a significant factor. On the 9th of March 1998 the appellant was convicted of no less than nine offences of handling stolen goods and eleven offences of using a false instrument before the Central Local Court in New South Wales. He was sentenced to six months imprisonment. What was he doing in Australia? The appellant has said nothing of this.

45. The next year the appellant was convicted again of offences of dishonesty. Before the Luton Crown Court on 13 August 1999 he was convicted of two offences of false accounting, two of obtaining a money transfer by deception, one of obtaining property by deception, and two of attempting to obtain property by deception. For those offences he was sentenced to fifteen months imprisonment.

46. The appellant's most recent conviction was before the Reading Crown Court in March 2004. He did not plead guilty. He was found guilty after a trial. He was convicted of nine offences of handling stolen goods. He was sentenced to three and a half years imprisonmemnt although half of that was suspended. He had to pay £500 towards the prosecution costs. Although the judge made no recommendation for deportation, there is nothing to say that he paid any regard to that aspect of the case at all. It is plain from the sentencing remarks that HHJ Playford regarded these as serious offences. He said: I think that you are in the way of being professionally dishonest."

15. I then omit two sentences: paragraph 46 continues -

"These are not, we accept, offences involving violence, sex, drugs or terrorism but they are serious. Three and a half years imprisonment is not a trivial sentence. The probation officer assessed the appellant as being at a high risk of re-offending. Nothing that has been put before us causes us to depart from that professional opinion. This is a man who has been in the United Kingdom for getting on for twenty years. He is a man with a long record of dishonesty, and we are not inclined to believe what he says".

16. The tribunal then dealt with the compassionate circumstances, saying that they were worthy of considerable weight. And at paragraph 48, the tribunal concluded that the balance falls in favour of deportation.
17. Turning now to the submissions. Apart from the procedural submission, which I have already considered, Miss Malik made two substantive submissions. First, she contended that Judge Kaler did not make an error of law; and secondly, she contended that at the second stage reconsideration, the tribunal reached an irrational decision. She also submitted that in relation to Article 8 of the European Convention on Human Rights, the tribunal applied the wrong test.
18. In my judgment, Judge Kaler did make an error of law, as explained by Judge Gill at paragraph 11 of her determination, which I have already quoted. In fairness to Judge Kaler, it should be made clear that she did not have the full picture of the appellant's criminality. But she did know enough to know that he had been convicted of serious offences on more than one occasion, and, on the last occasion, so serious as to merit a custodial sentence of three and a half years imprisonment. Such a sentence could not properly be imposed unless the offences were serious, and nothing was gained by attempting to compare his offending with the offending of others convicted of other types of crime. As Judge Gill said in the passage which I have already cited, offences of dishonesty and loss of property can range in seriousness, from those which are minor and do not strike at the heart of the community, such as shoplifting, to those which are more serious and do strike at the heart of the community. The fact that the appellant was sentenced to a term of three and a half years is an accurate hallmark of the seriousness of the offences for which he was sentenced in Reading Crown Court.
19. As Mr Bourne points out, once Judge Kaler accepted, as she did, that there was a propensity to reoffend, it was not necessary for her to decide whether the offences were of the type which caused such deep revulsion that public policy requires deportation. And the apparent search for offences which "in themselves merit deportation" was misguided. What was required was an assessment of the appellant's offending, of his immigration history, of his links with the United Kingdom (including but not confined to the links with his family) and then a balancing exercise, bearing in mind that although a deportation order would be difficult for the appellant and his family, it would be his conduct, and that alone, which created the possibility of such an order being made.
20. That brings me to Miss Malik's second submission: namely, that at the second stage reconsideration the tribunal reached an irrational decision. That seems to me to be entirely wrong. By quoting from that decision, I have, I trust, demonstrated its rationality. And it is worth bearing in mind that by the time that the decision was made the tribunal knew much more of the appellant's criminal record. It also paid careful attention, not only to his family links with the United Kingdom, but also to the lack of evidence of other links.
21. I turn now to Article 8. When dealing with Article 8, the tribunal said at paragraph 49 of its determination :

"As to Article 8 of the Human Rights Convention, we accept that the appellant enjoys a family life with his wife and three children and that to remove him to Nigeria will occasion an interference with his right to respect for family life with those four persons. There is evidence, which we accept, that the wife and two youngest children would not wish to follow him. That interference would be in accordance with the law as it would follow on from a properly conducted judicial procedure. It would have the legitimate aim of the prevention of crime. That interference would, in our judgment, be proportionate to that legitimate aim. The appellant does not fall within the Immigration Rules insofar as we find that the balancing exercise required by paragraph 364 falls in favour of deportation and we can find nothing truly exceptional about this case which might allow the appellant to succeed under Article 8 where he has failed under the Immigration Rules."

22. Before the tribunal, the appellant's counsel (the counsel before us today) agreed that in this case there was no distinction between paragraph 364 and Article 8 (see paragraphs 32 of the tribunal's determination). She seems now to have revised her opinion in the light of what was said by the House of Lords in Huang v The Secretary of State for the Home Department [2007] 2 Weekly Law Reports 581. The relevant passage is at paragraph 20, and it reads thus :

1. "In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality."

23. The first thing to be noted is that the House of Lords was considering, not deportation as such, but refusal of leave to enter or remain; hence the way in which the passage is worded. Secondly, the decision of the House of Lords was given on 21 March 2007, over 2 months after the tribunal in the present case gave its decision so the tribunal did not have the benefit of the decision of the House of Lords. And at least prior to that decision, the approach adopted in paragraph 49 by the tribunal in the present case would have been regarded as entirely correct. If one now asks in this case whether, taking everything into consideration, the decision to deport prejudices the family life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8, the answer, as it seems to me, in a deportation case where everything has been taken into account, must still be in the negative. I would therefore dismiss this appeal.

Lord Justice Mummery:

24. I agree.

Mr Justice David Richards:

25. I agree.

Order: Application dismissed