England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT NO. IM/01225/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		26th July 2007

Sir Paul Kennedy:

1. The appellant is a native of Jamaica. He was born on 7 May 1976, so he is now 31 years of age. On 24 April 2000, when he was 23 years of age, he arrived in the United Kingdom and was granted leave to enter for six months as a visitor. He told the immigration officer that he intended to stay for three weeks and was due back at work in Jamaica on 21 May 2000, and that he had a return ticket. There is an issue about whether he lied to the immigration officer because there is evidence that it was already his intention to relocate to the United Kingdom; see for example what he said to the probation officer, Miss Maylam, as recorded in her report of 19 February 2004:

"He told me that he came initially on holiday but stayed and was supported by a cousin who funded his attendance at the college in Chelsea College in Brixton where he studied Information Technology. He told me that one of the motivating factors in his coming to and remaining here was his family's wish that he should be removed from the violence that was occurring in his area between gangs, although he indicated to me that he did not consider he was at risk himself of getting involved in the criminal activities that prevailed. Also, the family considered that he would have greater opportunities to better himself here."

In any event, the appellant did not return to Jamaica and on 4 October 2000, just before the end of the six month period, he applied to remain as a student. That application was refused on 15 November 2000 and he then lodged an appeal.

2. On 27 April 2001 the appellant married Charlene Porter, a British citizen, and on 3 May 2001 he applied to remain on the basis of his marriage to her. On 27 December 2001 their child L was born. On 25 June 2002 he was arrested. The papers do not include any information as to the circumstances of his arrest, but he was charged with three serious offences: first, possessing a prohibited firearm, namely a pistol; secondly, possessing ammunition without a certificate; and thirdly possessing class A drugs, namely crack cocaine, with intent to supply. For those offences he appeared before Northampton Crown Court on 16 December 2002, where he offered pleas of guilty on a basis which was not acceptable to the court. A Newton hearing was therefore ordered, but the appellant chose not to give evidence and the sentencing judge rejected his assertion that he had simply found the gun in a park the week before his arrest.
3. The appellant had, it seems, been in Northampton, far away from his home in London, when he was found in possession of a small amount of crack cocaine. He also had mobile telephones and significant tear-out slips in his diary, and more drugs and the pistol were found hidden in a garden. The judge found that the gun was linked to the drug dealing and, when sentencing the appellant to a total of four years, he said:

"I have no doubt that this defendant is seriously involved in class A drugs in the Northampton area and he is a man who is prepared to have some form of firearm if necessary in connection with that conduct. Inevitably, all of those factors make this a serious series of offences and it is perhaps fortunate that he was arrested when he was before any great harm was done with that particular pistol."

Assuming that the offences were committed on the day of the appellant's arrest, they were committed 26 months after his arrival in the United Kingdom.

4. The appellant behaved well whilst he was in prison. He had no previous convictions. He was not a drug user, and although he did on one occasion get involved in a fight with another prisoner, for which he was punished, generally he seems to have done well. He took various courses for his own improvement and on 19 February 2004 Miss Maylam prepared a parole assessment report. For that purpose she interviewed the appellant, but, as she pointed out, she had no other information as to the circumstances of his offending. He told her that he had borrowed £500 to contribute to Christmas and to buy gifts for his wife and child. His wife had taken a flat in Northampton with the idea that they might move to live there. When he was pressed to repay his debt his creditor suggesting using the flat as a basis for drug dealing, but this had not started when he was arrested. As recorded by Miss Maylam, he explained that he found the firearm and ammunition, whilst playing football in a park, concealed under some bushes. He stated that whilst he had no idea what was contained in the bag, he had hoped it contained money. He stated that he had kept it pending legal advice or calling the police, but that he had insufficient time to do so. So the version of events in relation to the gun which was given to Miss Maylam was the version rejected by the sentencing judge and she did not know that. When making her risk assessment she said that if his account of events was accurate, and taking into consideration his good record, his family commitments and his behaviour in prison, in her judgment the risk of re-offending was low.
5. When the matter reached the parole board in May 2004, the board did have available the judge's sentencing remarks and took them into account. In a passage to which our attention has already been referred, the board said:

"The panel has weighed the serious nature of the index offences, and his minimisation of their seriousness, against the evident progress that he has made in prison and his willingness to comply with the demands of licence. On balance it took the view that his risk of re-offending had reduced and parole is therefore granted."

Whilst the parole board was considering whether to grant parole, the Secretary of State was considering whether to deport, and on 25 May 2004 he gave notice of his decision to make a deportation order, that being an order which, in the light of the convictions, he considered to be "conducive to the public good". The order was made under section 3(5)(a) of the Immigration Act 1971 (as amended), which so far as material, provides that a person who is not a British citizen:

"… is liable to deportation from the United Kingdom if:

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

6. Under section 82 of the Nationality Immigration and Asylum Act 2002 the appellant had the right to appeal against the order of the Secretary of State, and he exercised that right on 4 June 2004. In his grounds of appeal the appellant placed particular reliance on article 8 of the European Convention on Human Rights: his right to respect for family life, and on article 3 of the Convention, his contention being that he would suffer at the hands of criminal gangs if returned to Jamaica. He was released from prison on licence on 23 June 2004, and in letters dated 20 December 2004 and 13 January 2005, the Secretary of State explained the reasons for his decision and his reaction to the appellant's grounds of appeal. The letter of 20 December 2004, which is three and a half pages long, ends thus:

"Full and careful consideration has been given to all the known facts of your case in line with paragraph 364 of HC395 (as amended). Your personal and domestic circumstances have been carefully balanced against the seriousness of your crime and need to protect the wider community. It is concluded that in your case it is appropriate to deport you to Jamaica."

7. Paragraph 364 of the Immigration Rules (as amended and so far as relevant) reads as follows:

"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 respects.

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

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections within the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

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

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf."

8. The appeal came before an adjudicator sitting at Surbiton on 11 March 2005, when the appellant was represented by his present counsel Mr Jacobs. The appellant was called to give evidence but it seems that he was not asked any questions about his offending. His wife also gave evidence and so did five other character witnesses. The adjudicator was aware of the decision of the sentencing judge at Northampton Crown Court, but nevertheless she said in her conclusion at paragraph 10.2:

"I am satisfied in light of all the matters previously referred to that balancing the public interest against the compassionate circumstances of this case as required by rule 364 the Respondent should have exercised his discretion differently and that the decision to make a Deportation Order is not appropriate. In reaching that decision I have considered the Respondent's view that there is an element of 'example to others' in the deportation decision. The rehabilitation, remorse and subsequent good character of the appellant outweigh that consideration."

9. She rejected the attempted reliance on both article 3 and article 8 of the European Convention. As to article 3, she found insufficient evidence of the appellant being at real risk of treatment contrary to article 3 if returned to Jamaica. As to article 8, having referred to Mahmood v Secretary of State for the Home Department [2001] 1 WLR 840, she found no evidence of any obstacle to the family travelling as a unit to Jamaica. She recognised that there might be hardship, but found the case not to be exceptional and bore in mind that the interests of the appellant had to be balanced against the maintenance of a firm and fair immigration policy. Viewed in that way, return to Jamaica would not be disproportionate. The Secretary of State appealed against the decision of the adjudicator and on 16 May 2005 Senior Immigration Judge Jarvis ordered reconsideration of the decision pursuant to Section 103A of the Nationality Immigration and Asylum Act 2002.
10. The grounds of appeal, in summary, were that the adjudicator failed to give proper weight to the public interest considerations when balancing the serious nature of the crime against the prison and probation reports. Specific reference is made to the decision of this court in N (Kenya) v Secretary of State [2004] EWCA Civ 1094. The order for reconsideration having been made, the appellant then, as he was entitled to, filed a reply in which he asserted that the adjudicator erred in dismissing his appeal under article 8, asserting that the compassionate factors are such that deportation would be disproportionate and therefore unnecessary for the maintenance of proper immigration controls.
11. The matter came before a panel of the Asylum and Immigration Tribunal on 31 July 2006, when submissions were made by counsel for the Secretary of State, and counsel for the appellant, Mr Jacob. The tribunal found that the adjudicator had made an error of law. That tribunal said:

"We are satisfied that the adjudicator erred in law in failing to give proper consideration to the legitimate public interest, both in deterring a serious crime and in sending a powerful message to individuals minded to commit such crimes, particularly those involving firearms or hard drugs, that such offences are rightly to be viewed with abhorrence, and that foreign nationals who commit them must expect to be deported from the United Kingdom save in exceptional circumstances."

12. Mr Jacobs then said that he wanted to adduce further evidence, particularly in relation to the second child who had been born on 5 August 2005, so a full stage 2 reconsideration was ordered before another panel. The tribunal said:

"The appropriate course of action is therefore for this hearing to be adjourned for a full stage 2 reconsideration before another panel of this tribunal so as to enable the parties to adduce such further evidence as may be thought appropriate, and for the panel to arrive at a fresh decision on the basis of that evidence."

There would seem to be no doubt that the second tribunal was envisaged as being able to proceed on the basis of any evidence that it might hear.

13. The hearing before a fresh panel took place on 9 November 2006, the determination being promulgated on 5 January 2007, and it is that determination which is the subject matter of this appeal. In essence, the appellant's complaint is that the tribunal misunderstood its function. It should have taken as its starting point the findings of fact made by the adjudicator and only looked at the fresh evidence to provide information as to what had happened to the appellant and his family since March 2005. That, it is said, was what was required to comply with the guidance given by this court in EK (Serbia) v Secretary of State [2006] EWCA Civ 1747.
14. As anticipated, the appellant did take the opportunity to adduce fresh evidence before the tribunal. There were some documents to show that he had been making good use of his time and there were letters of support from those who had originally testified. The appellant himself, his wife and his cousin gave oral evidence. In his original statement of 2 March 2005, the appellant had said that he agreed to sell drugs to discharge his debt and that he was fearful of what would happen if he was returned to Jamaica. He said:

"If I was forced to return to Jamaica, I would be homeless and would be killed by gunmen. The man to whom I owe money has threatened me and my family - he said that there is nowhere in Jamaica we can hide. He has links and friends in Jamaica and has threatened that if I return to Jamaica me and my family will be killed."

15. Before the tribunal, the appellant said in chief that there had been no developments with regard to the threats he claimed to have received before being sentenced to prison. Then, as the tribunal recorded in paragraph 44 of its determination, "in cross-examination the appellant stuck to his story that he had found the gun in the park, notwithstanding that the judge had not only expressed his disbelief but given reasons for that disbelief. He said he was unable to remember the names of the people who had threatened him as to why he had got involved in selling drugs". Having also heard from the appellant's wife and his cousin, the tribunal reached its conclusion. Having referred to the seriousness of the offending as found by the trial judge, in paragraphs 47 to 49 the tribunal said this:

"The Appellant has persisted in his account that he found the gun, notwithstanding the implausibility of that account. We do not accept the Appellant's account of this. We note that the judge analysed the matter very carefully in his sentencing remarks following a Newton Hearing."

I interpose to explain that the tribunal had heard evidence from the appellant. It was clearly entitled to form a view about it:

"It is a matter of some concern that the Appellant continues to put forward this implausible account and in our view it undermines the Appellant's claim to be a changed man and to have left his offending behind him. The fact that the Appellant cannot be honest to this court or with his probation officers about what he has done and why he has done it leaves us to doubt the Appellant's claim to be a changed man who has put his pattern of past offending behind him.

We were concerned that the impact of the probation officer's remarks as to the likelihood of re-offending was severely undermined by the fact that the probation officer clearly had not been given full details of the Appellant's previous offences and was working on the basis of what the Appellant only had said. As the Appellant had been shown by the sentencing judge to be unreliable in this respect, the adoption by the probation officer of the Appellant's account had inevitably coloured her judgment to the extent that we have found we could not rely on it. We cannot therefore be as sanguine as the previous Adjudicator evidently was that the Appellant does not pose a risk of re-offending."

16. Mr Jacobs submits that the tribunal fell into error because in the light of DK (Serbia), which was decided on 20 December 2006 just 16 days before this determination was promulgated, it is now clear that at a reconsideration hearing a tribunal should not go back over old ground. As Latham LJ said at paragraph 25 in DK (Serbia):

"The [stage 2] assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interests of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them."

17. The difficulties which Mr Jacobs faces in the present case are threefold. First, the stage 1 tribunal ordered a full reconsideration. Secondly, the findings which he seeks to preserve, and which concern the appellant's credibility and his attitude to his offending (and the risk of re-offending), are, as it seems to me, infected by the error of law, which was a failure to give proper consideration to the legitimate public interest both in deterring serious crime and in sending a powerful message to individuals minded to commit such crimes. The effect of that error could not be properly evaluated without a careful reconsideration of the appellant's own offending and his attitude to it. Thirdly, the tribunal did have new evidence from the appellant himself as to his attitude to his offending. He had not given evidence at his trial or before the adjudicator in relation to this topic, and his attitude to the offending was only explored before this particular tribunal.
18. The tribunal, as it seems to me, was plainly entitled to have regard to what he said about his offending and in the light of that evidence to evaluate the risk of re-offending. The tribunal then went on to perform, as it was required to do, the balancing exercise. At paragraph 50 of its determination it said this:

"Whilst we have given careful consideration to the compassionate circumstances in this case and in particular the Appellant's family situation, in carrying out the necessary balancing exercise for ourselves, we do not find that these circumstances outweigh the public interest in accordance with the tests set out by the panel at stage one in their determination and by the Court of Appeal in N Kenya. The panel refer in particular to the majority judgment of the Court of Appeal in N Kenya and the guidance to be given to judges in dealing with such cases. The sale of hard drugs and possession of a firearm are offences to be viewed with abhorrence. We note the panel's view that 'foreign nationals who commit them must expect to be deported from the United Kingdom save in exceptional circumstances.'

It follows from what we have said that we do not find that there are any such exceptional circumstances in this case."

19. In N (Kenya) v Secretary of State May LJ said at paragraph 64:

"The discretion is to balance the pubic interest against the compassionate circumstances of the case taking account of all relevant factors including those specifically referred to in paragraph 361 of HC 395. Essentially the same balance is expressed as that between the appellant's right to respect for his private and family life on the one hand and the prevention of disorder or crime on the other. Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality."

At paragraph 83 Judge LJ said:

"In my judgment (whether expressly referred to in any decision letter or not) broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation. The Secretary of State has a primary responsibility for this system. His decisions have a public importance beyond the personal impact on the individual or individuals who would be directly affected by them. The adjudicator must form his own independent judgment. Provided he is satisfied that he would exercise the discretion 'differently' to the Secretary of State, he must say so. Nevertheless, in every case, he should at least address the Secretary of State's prime responsibility for the public interest and the public good, and the impact that these matters will properly have had on the exercise of his discretion. The adjudicator cannot decide that the discretion of the Secretary of State 'should have been exercised differently' without understanding and giving weight to matters which the Secretary of State was entitled or required to take into account when considering the public good."

At paragraph 87 Judge LJ said:

"Although not expressly mentioned as a factor in rule 364, I agree with the adjudicator that the risk of further offending or potential danger was relevant to the deportation decision. In simple terms, the greater the risk represented by the offender, the greater the public interest in his deportation. However, just as the express provisions in rule 364 do not specify that the conviction of a specific crime or crimes will automatically lead to an order for deportation, so consideration of the 'nature of the offence' or offences of which he was convicted continues to be relevant, even if the risk posed by the appellant has significantly diminished. Indeed as it seems to me, even if the risk were extinguished altogether, given the need to attend to the public good and the public interest, the nature of the relevant offence or offences continues to require close consideration."

20. In paragraph 51 the tribunal dismissed the appellant's appeal against the adjudicator's decision in relation to article 8, accepting that family life would be interfered with, but finding that the interference would be proportionate as being in accordance with immigration law and rules.
21. In the course of this judgment I have dealt with the points made by the appellant's counsel in his grounds of appeal and in his skeleton argument as well as in his oral submissions to us. In my judgment there is no substance in any of the points now being made. For the reasons I have given, I would conclude that the tribunal made no error of law. It was entitled to approach the matter as it did, to conduct the balancing exercise that it did and to reach the conclusion that it did as to the result. Having reached that conclusion, its decision in relation to article 8 was, as it seems to me, inevitable.
22. When the tribunal said "there is nothing truly exceptional about this family life and certainly nothing which outweighs the gravity of the offences and the need to protect the public", it probably was adopting the approach of Lord Bingham at page 20 in Razgar v Secretary of State [2004] 2 App Cases 368. However, in Huang v Secretary of State [2007] 2 WLR 581, the House of Lords has now made it clear that there is no need for exceptionality. In paragraph 20 of Huang, Lord Bingham said:

"That 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 in the 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 the test of exceptionality."

23. In the present case the life of the family can reasonably be expected to be enjoyed elsewhere and on the findings of fact made by the tribunal the ultimate question set out in Huang had to be answered in the negative. I would therefore dismiss this appeal.

Lord Justice Tuckey:

24. I agree. There is nothing I can usefully add.

Lord Justice Longmore:

25. I also agree.

Order: Appeal dismissed.