Author: Brian Coleman
Last saved by: viky.martzoukou
Company: Merrill Corporation

Case No: C5/2007/2007
Neutral Citation Number: [2008] EWCA Civ 1587
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IM/13800/2005]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 27^th October 2008

Before:

LORD JUSTICE WARD
LORD JUSTICE WALL
and
LORD JUSTICE HOOPER
- - - - - - - - - - - - - - - - - - - - -

Between:

| DW (JAMAICA) | Appellant
| - and - |
| SECRETARY OF STATE FOR THE HOME DEPARTMENT | Respondent

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr A Pretzell (instructed by Makka Solicitors) appeared on behalf of the Appellant.
Mr S Kovats (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.
- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Ward:

1.	The appellant in this case is a citizen of Jamaica who was born on 12 December 1974, so he is soon to be 34 years old.  He claimed to have arrived in the United Kingdom on a Jamaican passport in 1991 on a visit at a time when he would have been about 16 years old.  Sometime in 1992 he returned to Jamaica on a Jamaican passport, stayed there for three or four months and came back to the United Kingdom on a Jamaican passport later that year.  He returned to Jamaica in 2001 and stayed with his mother for a couple of months, returning in November 2001.  

2.	On his arrival he presented a British passport but that had been forged.  He was therefore charged with presenting that forged passport, and after his arrest his luggage was searched and packets of cocaine were found to be concealed in that luggage.  Charged with attempting to import a quantity of a controlled class A drug, he pleaded guilty to that offence and on 21 February 2002 he was sentenced to a term of eight years imprisonment.  The judge would have recommended his deportation had he had the power to do so.

3.	The Secretary of State informed him by notice dated 23 December 2004 that he had decided to deport him on the grounds that his removal would be conducive to the public good.  The appellant appealed as he was entitled to do and that appeal was heard by Immigration Judge Higgins on 12 August 2005, and his appeal was allowed, the reasons given in the decision promulgated on 5 September 2005.  The Secretary of State successfully sought an order for the reconsideration of that appeal and that reconsideration was duly heard by Immigration Judge Jhirad and Dr Chaudhary.  They found in the Secretary of State’s favour, with the result that the appellant’s appeal, both under the Immigration Rules and under Article 8 of the European Convention on Human Rights, was dismissed; and at the moment he stands to be deported.  Permission to appeal was refused by Longmore LJ on the papers but renewed, and the renewal came before Sedley LJ.  He was concerned about what he called “the confused and contradictory way in which the AIT appear to have approached their task”.  But he was equally concerned about the “discursive and excessively argumentative grounds” that were being put forward for that appeal.

4.	In the result he allowed the appellant to reformulate his grounds of appeal and he subsequently granted permission, but on one ground only; it is this: that the immigration judge misdirected herself in law when she concluded in paragraph 24 of the determination that: “A person who has committed a serious custodial offence in the United Kingdom cannot be permitted to remain here”.  The ground of appeal is that she failed to consider what the appellant had done since his release and did not therefore properly apply her mind to paragraph 380 on the Rules.

5.	Mr Steven Kovats for the Secretary of State today frankly acknowledges that that statement was a misdirection in law; indeed with his characteristic candour he concedes that that was but one of four misdirections that were made by the immigration judge, the others being, first, that they applied the wrong set of rules to the case before them.  In error they applied the amended Rule 364 of the Immigration Rules which came into effect after the date relevant to the facts of this particular case, and thus they directed themselves, as they said in paragraph 17 of the determination: 

“Under paragraph 364 of HC 395, as amended, subject to paragraph 380 each case will be considered on its merits; where a person is liable to deportation the presumption shall be that the public interest requires deportation.”

6.	The old rule 364 which did apply to the case contains no such presumption but requires that the public interest be balanced against any compassionate circumstances of the case, and it requires a number of factors, to which I shall later refer, to be taken into account in striking that balance.

7.	The second error was that Immigration Judge Jhirad considered the Immigration Rules before considering Article 8, contrary to the guidance given in the case of EO (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062, a case which may not have been drawn to the immigration judge’s attention because it was only given a fortnight or so earlier.

8.	The third error -- and for this the immigration judge is not to be blamed -- she did not have the benefit of their Lordships’ wisdom handed down last week in EM (Lebanon) v SSHD [2008] UKHL 64, putting us right that the burden of proof in Article 8 cases is a real risk not the balance of probabilities.  

9.	Notwithstanding that unpromising start, Mr Kovats submits that the error in paragraph 24 was not a material one because if one stands back and considers the determination as a whole, it will be seen that the Asylum and Immigration Tribunal did in fact take all relevant factors into account in striking the proper balance that had to be struck.  So standing back and looking at this decision, I turn to the findings that were made.

10.	In paragraph 19 of the determination reference is made to paragraph 395 C of the Immigration Rules.  That rule had no application to this case.  It concerned administrative removal, not deportation; but perhaps by a happy chance it does reflect in the decision of the tribunal what is required to be done under Rule 364, namely attempting to strike the balance between the competing interests at play.  And as I have indicated, Rule 364 sets out eight specific factors which have to be taken into account.  Those eight factors are reproduced in Rule 395 C.  They are, first, age.  That is dealt with in  paragraph 19: the appellant is 33 years old.  Factor 2 is the length of residence in the United Kingdom.  That is dealt with in the same paragraph: 

“He claimed to have come legally to the UK in 1991 as a visitor (at that time Jamaican citizens did not need entry clearance).  He remained here ever since, in breach of the Rules, apart from two brief visits to Jamaica totalling about six months.”

11.	Factor 3 is the strength of connections with the United Kingdom.  That was dealt with by the tribunal observing that he had no relatives in the United Kingdom apart from his wife and his step children, to whom he claims to be a father figure.  He had, as the tribunal had earlier set out, met Mrs Audrey Alleyne, as she then was, shortly after his arrival in 1991.  She had two children by a previous relationship with a Mr Young.  The eldest child was born in December of 1989, so she is nearly 21; and the second daughter was born on 9 December 1992, so she is presently fifteen and will be sixteen a matter of weeks’ time.  

12.	The tribunal recorded that the elder girl is now living independently, having some contact with her mother; but the younger girl lives with her mother and with the appellant and seems to want to have little to do with her father.  I will return to this aspect in a moment, but there the tribunal do address the strength of his connections with this country.  The fourth consideration requires regard to be had to personal history, including character, conduct and employment record.  The tribunal notes his serious criminal act and his unsavoury record, his producing a false passport, but it notes that he is in the prime of his life and good health and there was evidence that he was employed up to December 2006, although there was no supporting evidence of his claim to be currently employed.  So there they consider the relevant factors including the risk of reoffending.  In the absence of a parole report it was difficult to say whether he was at risk of reoffending, but they go on to say: 

“Even supposing the risk is low, the offence for which he was convicted is, we find, constituted [sic] a threat to the public interest on the basis of conduct alone.  The severity of the offence was sufficient to warrant a deportation order, particularly as it was a drugs related offence.”

13.	Mr Kovats submits that really what the tribunal are there saying is that this was a severe enough offence to make it obvious that he was at least a candidate for deportation and that did not impinge upon the need to go on to consider the other relevant factors.  

14.	The fifth of those, being his domestic circumstances, was properly considered in paragraph 20, in which it is set out his marriage to his wife, his closeness to the youngest child, this being a genuine and subsisting marriage and a solid relationship between the three of them.

15.	The sixth factor is his previous criminal record and the nature of any offence of which a person has been convicted, and that was dealt with in paragraph 21, being the index offence, there being no evidence of any other offences for which he has been convicted.

16.	Factor seven is the compassionate circumstances which were dealt with in paragraph 22.  There was no evidence of any mental or physical issues, the principal factor in favour of the decision to deport being the nature and gravity of the offence; and the tribunal go on to say this at the end of paragraph 22: 

“That it was serious is manifest from the length of the sentence passed notwithstanding his guilty plea and the length of sentence marks the distaste with which the community views the import of Class A drugs.  We do not find that the balancing exercise weighs in favour of the appellant rather on the side of public interest in seeing him deported following his conviction for a very serious offence indeed.”

That last sentence is in my judgment of importance.

17.	The eighth and final factor required to be considered are any representations received on the person’s behalf, and that the tribunal dealt with in paragraph 3, observing that Mrs Williams and the younger daughter appeared at the hearing to support him, the daughter having formed a close bond and expressed her real anxiety at the prospect of him being sent away, but there were other representations from any others.  

18.	Then comes the crucial paragraph 24: 

“Subject to paragraph 380 in considering whether deportation is the right course of action, the public interest must be balanced against any compassionate circumstances of the case.  A person who has committed a serious custodial offence in the United Kingdom cannot be permitted to remain here.  The appellant has chosen to defy UK immigration law and involve himself in serious criminal activities for which he was convicted.  The importance of maintaining the integrity of the Immigration Rules is a matter of the highest importance.  The appellant is a fit and healthy man with roots in Jamaica.  Close family members remain in Jamaica.  He would return there as a man in his prime with valuable skills in painting and decorating and with an experience of a developed country that would stand him in good stead upon his return.  He would be returning to a country with whose traditions, culture and customs he is familiar. There is no evidence that close family members in Jamaica would not be willing and able to accommodate and maintain him whilst he sought work and accommodation of his own.  We do not find that the appellant’s appeal can be allowed under the Immigration Rules.”

19.	Having reached that conclusion the tribunal turned to Article 8, pointing out the strong reasons Mrs Williams has for not going to Jamaica, namely those relating to her care in looking after her disabled mother.  They refer to the younger daughter and they observe that, although only 15, she will be free on her majority to make her own decisions about her future.  They speculate about her father’s refusing to consent to her going to Jamaica; they speculate about what the court would do if application were made for leave to remove her before she is 16; and they conclude eventually that there were no insurmountable obstacles to Mrs Williams going to Jamaica with the appellant or settling down with him.  Even if Mrs Williams and the daughter were not minded to join him they could communicate sufficiently by letters, emails and inevitably these days by the internet, and so the decision was taken against the appellant.

20.	I am bound to say that when I read Mr Kovats’ skeleton argument I had a good deal of sympathy with his submissions.  But the fact remains that this case is, as he so frankly acknowledges it to be -- they were his words but they precisely echo mine -- the case is a bit of a mess.  The crucial question, given the limited permission which was granted in this case, is whether it is inevitable that, if the Asylum and Immigration Tribunal had not directed themselves in the strong terms set out in paragraph 24, a person who has committed a serious criminal offence in the UK cannot not  -- not should not --cannot be permitted to remain here.  Despite those strong words, is it inevitable that they would have come to that conclusion if they had properly directed themselves in that regard?  It is in my  judgment a close run thing.  I can well understand that the recitation of relevant factors, set out as they have been, do amount to a formidable case for deportation; nonetheless I cannot be satisfied that even on the limited ground on which permission has been granted, and putting aside the three other errors, and particularly trying to put aside the fact that the case proceeds on a presumption in favour of deportation, nonetheless I am not satisfied that the tribunal properly directing itself was inevitably bound to come to the same conclusion.  Immigration Judge Higgins had been persuaded of the merits of the appellant’s case, the position of Mrs Williams and the daughter, who were more fully considered on the Article 8 aspect of the case; after, that is to say, a decision had been taken that the case under the Rules could not succeed in the appellant’s favour.

21.	So I reluctantly conclude that it is not inevitable that this decision would stand; and although it is pretty appalling that the decision to deport this man was taken nearly four years ago, I regret for that reason alone that further time must be taken before his future is settled.  

22.	I would allow the appeal and remit the matter back to the Asylum and Immigration Tribunal for a further reconsideration of his case.

Lord Justice Wall:  

23.	I agree and do not wish to add anything

Lord Justice Hooper: 

24.	I agree

Order: Appeal allowed