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 AND IMMIGRATION TRIBUNAL
IA/045132/2006

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 October 2008

Lord Justice Moore-Bick :

1. This is an appeal from a determination of the Asylum and Immigration Tribunal dismissing the appellant's appeal against the decision of the Secretary of State to deport him to Pakistan on the grounds that his presence in this country is not conducive to the public good.
2. The appellant is a national of Pakistan who came to this country on a student visa in July 1998. In October 1999 he met his present wife, L, and a relationship began to develop between them. That relationship flourished and in November 2002 they became engaged to be married. From time to time the appellant obtained an extension of his original visa, but on 31^st August 2003 his leave to remain in this country finally expired. Nonetheless, he stayed here and on 24^th September 2003 he and L were married. The next day the appellant applied for leave to remain as a spouse and as a result he was granted leave to remain in this country for two years from November 2003.
3. When the appellant came to the United Kingdom he held an international driving licence under which he was entitled to drive a car in this country for up to a year without taking the usual driving test. After that it became necessary for him to obtain a provisional licence and pass the driving test in the ordinary way. At some point the appellant did obtain a provisional licence and until he had passed a driving test he was obliged to display 'L' plates. However, he did not always do so and in October 2003 he was convicted of driving without 'L' plates, for which he was fined £150. As will be seen, this conviction later came back to haunt him in the context of his appeal against the order for his deportation.
4. In June 2004 the appellant committed another motoring offence, this time of a much more serious nature. He failed to stop at a pelican crossing on the Victoria Embankment during the early hours of the morning and ran down a young woman who was crossing on her bicycle. Unfortunately, she was very seriously injured and died shortly after the accident. In October 2004 the appellant was arrested and charged with causing death by dangerous driving. Following a trial at Middlesex Guildhall Crown Court he was convicted in July 2005 and sentenced to three years' imprisonment. His leave to remain in this country expired in November that year.
5. While the appellant was in prison L pursued the career as a graphic designer that she had begun in the autumn of 2003. In the latter part of 2005 she obtained a mortgage and bought a house which was intended to be the matrimonial home.
6. The appellant appears to have been a model prisoner and to have made good use of his time in custody. In January 2006 he was classified as a category D prisoner, which in the ordinary way would have led to his being released on home detention curfew in August 2006. However, on 5^th May 2006 he was served with the deportation notice which is the subject of the present appeal. One consequence was that he was reclassified as a category C prisoner and ceased to be eligible for home detention curfew. In the event he was not released from prison until 11^th January 2007 and thereafter he remained on immigration bail with a condition of weekly reporting.
7. On 13^th May 2005 the appellant lodged an appeal on both immigration and human rights grounds against the decision of the Secretary of State to deport him, relying principally on the interference with his private and family life that deportation would involve. His appeal was heard on 20^th October 2006 and dismissed in a determination promulgated on 23^rd November 2006. In December 2006 an order was made for the reconsideration of that decision, the hearing of which took place on 6^th March 2007. However, before the determination had been promulgated the House of Lords gave judgment in the case of Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 and the appellant was invited to make further submissions in the light of that decision. In the event the hearing of the reconsideration was resumed on 16^th October 2007.
8. On reconsideration the tribunal held that the original decision had been vitiated by an error of law. Moreover, it was conscious of the fact that a good deal of time had passed since the service of the deportation order, making it appropriate to re-examine the appellant's circumstances in their entirety. It therefore ordered that there be a fresh hearing at which all issues should be at large. That hearing took place on 5^th December 2007 and resulted in the dismissal of the appeal on all grounds, that being the determination which is the subject of the present appeal. In the meantime L had become pregnant with their first child who was born in May 2008.
9. Before turning to the tribunal's determination it is necessary to describe in a little more detail the circumstances of the offence which gave rise to the order for the appellant's deportation. The best description is to be found in the judge's sentencing remarks, which are set out in full in paragraph 69 of the determination. The salient features are that the appellant was driving along the Victoria Embankment at about 1.00 a.m. at what the judge described as a "furious" speed, accelerating as he approached the crossing. His car was travelling at between 50 and 60 miles an hour when it struck the victim, having crossed a red light. The appellant did not brake before the accident and did not bring the car to a halt until it reached the next set of lights. The judge described his driving as "very dangerous".
10. In its determination the tribunal recited in some detail the law applicable in cases of this kind, as well as the evidence before it and the parties' submissions. Having done so, it turned to consider whether deportation would infringe the appellant's right to respect for his private and family life and proceeded to consider the case by reference to the five questions suggested by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368. The tribunal therefore began by considering the extent of his personal and private life in this country. Having considered the evidence relating to his arrival in this country, his personal circumstances and his relationship with his wife, her family and the friends he had made here, the tribunal accepted in paragraph 98 of the determination that the appellant had established a private and family life in the United Kingdom. It then moved on to consider whether the interference with that private and family life that deportation would inevitably entail would have consequences of such gravity as potentially to engage the operation of Article 8 of the European Convention on Human Rights ("ECHR").
11. The tribunal directed itself that the answer to that question depended, in the context of the present case, upon whether family life could reasonably be expected to be enjoyed elsewhere. That led it to consider in some detail the evidence before it of conditions in Pakistan, especially as they could be expected to affect a young western woman such as the appellant's wife if she were to accompany him there. The tribunal found that although L had a close family in the United Kingdom, the hardship involved in relocation would not be sufficient to it make it unreasonable to expect her to accompany the appellant to Pakistan. In reaching that conclusion it noted that the relocation would not necessarily be permanent as it would be open to the appellant to apply for the revocation of the deportation order at some time in the future. As far as the appellant himself was concerned, he could expect to find employment in Pakistan and that if he needed treatment for mental health difficulties resulting from the accident (as to which it expressed some doubt) it would be available to him there. Accordingly, in paragraph 112 the tribunal held that removal to Pakistan would not interfere with his family and private life to such an extent as to engage Article 8.
12. In the view of the tribunal that was sufficient to dispose of the appeal and obviated the need to consider the question of proportionality, but it proceeded, nonetheless, to consider the remaining three of Lord Bingham's five questions. Questions three and four (whether the interference with the appellant's private and family life would be in accordance with the law and necessary in a democratic society) did not detain the tribunal long. It answered both in the affirmative, noting that although the appellant was assessed as representing a low risk of re-offending, the conduct which had given rise to the offence itself was deliberate, even if the consequences were unintended.
13. The question of proportionality, however, was dealt with at greater length. The tribunal found that the appellant had displayed a disregard for the laws of the United Kingdom over a prolonged period of time. He appeared to have broken the terms of his student visa by the nature and extent of his employment and had broken the law relating to motoring on two occasions, leading to his conviction of causing death by dangerous driving. It considered that he had not accepted responsibility for that offence, but had attempted to minimise his responsibility and continued to do so. Having discussed the nature of the offence and the appellant's response to it in some detail, the tribunal found in paragraph 130 of the determination that the interference with the appellant's rights under Article 8 was proportionate to the legitimate aim to be achieved by his deportation.
14. On behalf of the appellant Miss Knights submitted that the tribunal's determination was flawed in a number of significant respects. The first concerned the way in which it had approached its task, treating its assessment of the conditions which the appellant and L could expect to encounter in Pakistan as relevant primarily to the question of interference with his private and family life rather than to the issue of proportionality. That, she submitted, was wrong in principle and had led to a failure on the part of the tribunal properly to weigh up the various factors that should have been taken into account in making its decision on that important question.
15. One can see from the terms of the determination that the tribunal approached its task through the five questions posed by Lord Bingham in paragraph 17 of his speech in Razgar. No criticism can be made of the tribunal for doing so, but in my view there is some force in Miss Knights' submission that the nature and extent of the circumstances that the appellant, and more particularly L, could expect to encounter on relocation to Pakistan are relevant principally to the question of proportionality rather than to that of interference with private and family rights. Once one accepts, as the tribunal did, that the appellant and L both had a private and family life in this country, it is clear that the very fact of their removal to Pakistan would itself interfere to some extent with them, particularly in the case of L who has grown up here, whose family and friends are all here and who has an established career here. It is true that Lord Bingham's second question in Razgar supports the view that in some cases the degree of interference with private and family life may not be sufficient to engage Article 8, but it has been recognised that the threshold for establishing that Article 8 is engaged is not high: see Boultif v Switzerland (2001) 33 EHRR 50 at paragraphs 39–40 and AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 at paragraph 28 per Sedley L.J. In any event, it is obvious that the degree of interference to be expected is likely to depend more on the disruptive effect of relocation itself, rather than on the social and political conditions likely to be encountered in the country of destination.
16. Miss Knights also criticised the tribunal's findings as to the conditions which L would encounter if she were to accompany the appellant to Pakistan and its conclusion, based on those findings, that she could reasonably be expected to relocate there. She submitted that the tribunal had misunderstood or mischaracterised the nature of the appellant's case based on the evidence of social and political conditions in Pakistan, in that no reliance had been based on the risk of honour killings, as the tribunal appears to have thought, but on more broadly-based threats and difficulties likely to be encountered by economically active western women with small children, especially if they are known to be Christians.
17. In paragraph 100 of its determination the tribunal dismissed the risk to L arising from the practice of honour killings which still exists in certain parts of Pakistan. In my view it was entitled to do so, but I accept that the appellant had not placed reliance on risks of that kind, even if they were given some prominence in some of the evidence placed before the tribunal. Other evidence, such as the travel advice issued by the Foreign and Commonwealth Office in November 2007, does suggest that attacks have been made on expatriates and that terrorists continue to target western interests. Major cities are said to be vulnerable to indiscriminate bombing and other attacks. Other evidence tends to support the view that child healthcare services are inadequate. Miss Knights submitted that the tribunal failed to give proper weight to this body of evidence and that in the light of it its findings must be regarded as perverse. However, although I do not think that the tribunal approached this aspect of the case as sympathetically as it might, I do not think that its findings in this respect are fatally flawed.
18. Nonetheless, in the light of the findings it had made about the appellant's family circumstances, his employment and his wider social ties, I do not think it was open to the tribunal to find that the appellant's removal would not interfere with his private and family life sufficiently to engage Article 8. The tribunal itself said that in making that assessment it was guided by what the House of Lords described in paragraph 20 of its opinion in Huang as "the ultimate question", namely, whether the life of the family can reasonably be expected to be enjoyed elsewhere; but it does not appear to have appreciated that their Lordships were there referring to a question which involves consideration of the proportionality of refusing leave to enter or remain or (as in this case) removal pursuant to a deportation order, not simply the narrower question whether such action would involve any interference with private or family life.
19. For these reasons I am satisfied that the tribunal was wrong to find that removal would not interfere with the appellant's right to respect for his private and family life. However, since it did go on to consider the other questions posed by Lord Bingham, that error is not fatal to its decision. It is necessary therefore to consider its reasoning and conclusions in relation to those other questions, in particular the question of proportionality. Before leaving this part of the case, however, it is appropriate to mention another criticism of the determination made by Miss Knights, to which I shall return in a moment, namely, the tribunal's failure to give independent consideration to the effect of the appellant's deportation on L's private and family life.
20. The tribunal dealt with the question of proportionality in paragraphs 117 to 130 of its determination. One of the striking features of these paragraphs is that they are directed almost entirely to criticisms of various aspects of the appellant's character and behaviour. In paragraph 117 the tribunal found that the appellant had displayed a disregard for the laws of the United Kingdom over a prolonged period of time, breaking the terms of his student visa and various aspects of the law relating to motoring. It has to be said that there were grounds for making those findings, but it is also true to say that the tone of those paragraphs is unremittingly censorious, tending to give the impression that the tribunal had formed a very adverse opinion of the appellant in general. In paragraphs 124 to 126 the tribunal criticised what it saw as earlier attempts on his part to excuse his conduct in relation to the fatal accident and appears to have viewed with some circumspection the suggestion that he felt remorse for his actions. Indeed, in paragraph 126 it found that he and his family and friends still tried to minimise the offence. It took a particularly adverse view of what it saw as an attempt on his part to deflect part of the blame onto the victim.
21. Miss Knights submitted that in reaching the conclusions expressed in these paragraphs the tribunal failed to have proper regard to some important parts of the evidence before it. She drew our attention in particular to the evidence that the appellant's conduct in prison had been excellent and that he had made good use of the opportunities available to him. She also drew attention to the fact that he had been assessed as presenting a low risk of re-offending. In addition there was evidence from a number of sources that the appellant had been significantly affected by the accident; that he had suffered a significant degree of psychological trauma and that he felt considerable remorse for his actions. That evidence took the form of character statements from some of those who had dealings with him in prison and also from a consultant psychiatrist, Dr. Nuria Gené-Cos, none of which appears to have been seriously challenged. Dr. Gené-Cos, whose evidence was summarised at some length by the tribunal, described the effect of the accident on the appellant, saying that it had affected his mental health deeply and that he experienced intense remorse and displayed an attitude of self-punishment.
22. In my view there was evidence before the tribunal that would justify many of its criticisms of the appellant, but in that part of its determination which deals with the issue of proportionality I should have expected to see some reference to those parts of the evidence to which I have just referred in the course of reaching a balanced decision. This part of the determination is directed almost entirely to a consideration of factors that weigh in favour of the public interest in deporting the applicant, without much consideration being given to factors pointing the other way. In the case of a serious offender the public interest in favour of deportation lies principally in the protection of the public by the prevention of further offending in this country and in deterrence of others who may be tempted to commit similar offences: see, for example, cases such as R (Samaroo) v Secretary of State for the Home Department [2001] EWCA Civ 1139, [2002] INLR 55 and N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094; [2004] INLR 612. In the present case the appellant had been formally assessed as presenting a low risk of re-offending, so the public interest in his deportation lies very much in its deterrent effect. However, I think there is some force in Miss Knights' submission that in a case of this kind deterrence is of less weight than in cases of serious and deliberate wrongdoing. At all events, these are matters that must be taken into account in deciding whether the interference with private and family life resulting from deportation is proportionate to the objects sought to be achieved by it.
23. The tribunal's reasoning on the question of proportionality is to be found in paragraph 130 of the determination in which it simply stated that

"For all the reasons set out we therefore conclude that the interference with the appellant's Article 8 rights is proportionate given the legitimate aim to be achieved."

24. However, it has been recognised on many occasions that the decision on what, in a case such as this, is usually the critical question, namely the question of proportionality, involves striking a fair balance between the rights of the individual and the interests of the community. It calls for a careful assessment of the factors at play in the individual case, both those favouring the interests of the appellant and any others whose rights may be affected and those favouring the interests of the public. That being so, I am of the view that this statement of the tribunal's conclusion is deficient for two reasons. First, viewing the matter with the appellant alone in mind, there is no attempt to weigh up the various factors involved, namely, the nature and degree of disruption to his private and family life as against the public interest in deporting him. The tribunal should, in my view, have grappled expressly with that question and should have explained, at least in general terms, why the public benefit in deporting this appellant outweighed the interference with his private and family life. Mr. Collins submitted that the tribunal had in effect done that by making its findings about the appellant's private and family life and the interference it would suffer in paragraphs 91 to 112 and its findings relating to the public interest in paragraphs 117 to 129, bringing them together in the decision on proportionality in paragraph 130. However, in fairness to the appellant I think this case called for a more fully reasoned analysis and weighing up of the competing factors than is to be found in paragraph 130.
25. Second, however, I think Miss Knights was also right in saying that the tribunal failed to give adequate consideration to the position of L and the interference that the appellant's deportation would have on her private and family rights, a point which I touched on earlier. That is not something for which the tribunal can really be criticised, however. Although its attention was drawn to the decision of this court in AB (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 1302; [2008] 1 WLR 1893, in which Sedley L.J. pointed out that the rights of the spouse of a person facing removal were as fully engaged as those of the appellant, it did not have the benefit of the recent decision of the House of Lords in Beoku-Betts v Secretary of State for the Home Department [2008] UKHL 39; [2008] 3 WLR 166, in which their Lordships confirmed that in cases of this kind account must be taken of the effect of removal on the family unit as a whole. In this case the appellant is married to a British national, L, who has lived here all her life; they have a child a few months old; and L has a strong attachment to other members of her family, in particular her parents and sister. She also has an established private life. These are factors which the tribunal ought to have taken fully into account in reaching their conclusion on both interference and proportionality, but apart from a passing reference to AB (Jamaica), there is no indication that they did so.
26. For these reasons I am satisfied that the tribunal erred in law in reaching its decision and that the appeal must therefore be allowed and the matter remitted for further consideration. Given the nature of the criticisms made of the tribunal's decision, some, but not all, of which I consider to be well-founded, the matter should in my view be remitted to a differently constituted tribunal for reconsideration in its entirety.
27. Finally, I should mention that Miss Knights drew to our attention a change in the Secretary of State's policy in relation to the revocation of deportation orders which became effective in July this year. The duration of exclusion is a factor to be taken into account when considering the question of proportionality: see Maslov v Austria (Application 1638/03) paragraph 98. It seems likely that under the policy previously in force (which the tribunal obviously had in mind) the appellant could have hoped to make a successful application for the revocation of the deportation order after at the most ten years' absence from the United Kingdom, whereas under the current policy he could expect to be excluded from this country permanently. As Mr. Collins accepted, this change in policy since the order was made provides the appellant with grounds for making a fresh appeal against his deportation order, but the parties may think that its significance could more appropriately be taken into account by the tribunal when reconsidering the current appeal.

Lord Justice Rimer:

28. I agree.