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/23878/2005]

		Royal Courts of Justice Strand, London, WC2A 2LL
		22nd January 2008

Lord Justice Laws:

1. This is an appeal brought with permission granted by Sir Henry Brooke on 24 September 2007 together with an extension of time against a determination of the Asylum and Immigration Tribunal ("the AIT") promulgated on 18 December 2006. By that decision the AIT dismissed the appellant's appeal against the decision of the Secretary of State of 18 August 2003 to make a deportation order against the appellant.
2. The history of the matter is quite elaborate. The appellant is a Turkish national. He arrived in the United Kingdom on 24 January 1998 and was given six months' leave to enter as a visitor. On 26 March 1998 he applied for asylum. That was refused by the Secretary of State on 14 May 1998. The appellant's appeal against that refusal was dismissed on 8 February 1999. Leave for a further appeal to the Immigration Appeal Tribunal was refused on 10 March 1999.
3. However the appellant remained in this country unlawfully. On 25 May 2000 at Snaresbrook Crown Court he was convicted of one count of rape, two counts of battery and one count of attempting to intimidate a witness. He was sentenced to five years seven months' imprisonment and a recommendation was made for his deportation. There followed the Secretary of State's decision to deport him pursuant to that recommendation, made, as I have said, on 18 August 2003. The appellant's appeal against that decision was brought   both under paragraph 364 of the Immigration Rules, House of Commons Paper 395, which confers a circumscribed discretion to deport a person liable to deportation and also on human rights grounds pursuant to Article 8 of the European Convention on Human Rights, which of course guarantees the right to respect to private and family life.
4. The appeal came before Immigration Judge Monro on no less than three occasions: 2 December 2005, 23 December 2005 and 20 January 2006. Her determination was promulgated on 31 January 2006; she allowed the appeal. She held under paragraph 364 of the Rules that the factors which weighed against the appellant's deportation outweighed those which favoured it. In relation to Article 8 she held that the case was a truly exceptional one so that the appellant's removal would constitute a disproportionate interference with her Article 8 rights.
5. By this time the statutory appellate regime for dealing with immigration cases had changed so that a challenge to the immigration judge's decision fell to be mounted by way of an application to the AIT for a re-consideration. The Secretary of State made such an application. He had to show an error of law. On 13 February 2006 Senior Immigration Judge Chalkley made an order for reconsideration and so the matter came before the AIT on 1 December 2006 and their determination now under appeal was as I have said promulgated on 18 December 2006. The AIT found an error of law by the earlier immigration judge, proceeded to reconsider the appeal for themselves and dismissed it both under paragraph 364 and Article 8.
6. The appellant by counsel Ms Hulse appeals against this decision on two alternative bases. First it is said that the AIT was wrong to find that the immigration judge had made a mistake of law. Secondly it is said that the AIT's own decision on the appeal, substituted for that of the immigration judge, was legally erroneous. It is necessary to examine the facts a little more closely.
7. Before he came to the United Kingdom the appellant was married to a Turkish woman and had three children. At the time of the AIT's determination in December 2006 they were 20, 19 and 17 years of age respectively. They are of course now all a year older. In March 1998 a couple of months after the appellant himself they came to the United Kingdom. Like him they claimed asylum. However they, that is the three children and as I understand it their mother, at some stage obtained indefinite leave to remain pursuant to what is called the "family amnesty" policy. In this country the appellant met another woman. She was a Turkish Cypriot. He obtained a religious divorce from his first wife and in April 1999 underwent a religious marriage ceremony with the second lady. The appellant has three children by his second wife: the first born in March 2000, the second on 27 July 2005 and the last in December 2006, two days as I understand it before the AIT's decision. By the date of the AIT's decision under appeal, then, these children were respectively six years, 18 months and two days old. The second wife also has a daughter, Peri, by a former marriage. At the date of the AIT decision she was 15 and is now 17. She was and I assume remains in contact once or twice a week with her father in this country.
8. The offences of which the appellant was convicted on 25 May 2000 were committed against his first wife after the divorce and remarriage. He has continued to protest his innocence, alleging that on the occasion of the rape his first wife in fact seduced him and proceeded to invent the rape charge as a means of revenge against him. In its December 2006 decision the AIT quoted the trial judge's sentencing remarks, which I will replicate:

"'You were convicted by a jury on four counts in this indictment. You did not spare your wife the ordeal of giving evidence against you and you lied twice over in fact, once in initially giving your solicitors a defence which was false in that you said you were not there at all at the time of the rape, and then when it became clear that that was untenable, you claimed instead that she had seduced you. I can see little or no mitigation for count 2 of this indictment in which you were convicted of an assault upon your wife in the shop where you worked, and you will go to prison for one month.

In respect of count 3 of this indictment in which you were convicted of assault upon your wife in the street at a time not long after a court had issued an injunction restraining your from visiting or molesting her, you will go to prison for six months. Upon count 4 of this indictment, when in breach of all the injunctions that had been issued, and after you had been taken to court or threatened with court proceedings for an earlier breach of an injunction, you went to your wife's flat and there raped her, you will go to prison for four years.

Upon count 5 of this indictment, having raped and being the subject of all these injunctions, you then attempted by threatening death to prevent her from proceeding with the allegations or from testifying to the allegations which she had made. In relation to that count you will go to prison for one year. All those sentences will be consecutive. The total sentence of imprisonment that I pass upon you is 5 years and 7 months.

In addition, it seems to me, quite aside from the way in which you have treated your wife, I must have regard to the way in which you look at orders made by the courts in this country and at the way you attempted to prevent the processes of justice taking their course in this case. It seems to me detrimental to the interests of this country that you should remain here, and I recommend that when your sentence is served you be deported. That recommendation is subject to the ultimate decision of the Secretary of State.'"

9. The appellant and his second wife were in due course investigated by the Social Services who concluded as I understand it that there was, notwithstanding his conviction, no impediment to the appellant's living with his second wife and, more particularly, his teenage stepdaughter and his then one-year-old daughter by the second wife. A report was prepared dated 29 September 2004 pursuant to Section 37 of the Children Act 1989. In addition his second daughter and son by the first marriage have chosen to live with him.
10. Immigration Judge Monro first explained how in his view the balance between compassionate circumstances and the imperatives of immigration control should be struck under paragraph 364 of the Rules as follows:

"36…The Appellant has never been charged or convicted of a crime other than those detailed above, which were in the context of a marriage breakdown.

He has been thoroughly assessed by social services for any risk he may pose to the children in his household, and they concluded that there was no evidence of such a risk.

There is no evidence that the Appellant might commit similar offences in the future.

I have noted that his oldest child, Merve, has not supported him at this hearing, and her attitude is unknown, but Melike and Oguzhan have done so, and chose to go to live with him after his release from prison.

I accept that he has a close and loving relationship with his step daughter, and with Oguzhan and Melike, as well as with his two young children by his second wife.

His wife said in evidence that if necessary she would go to join him in Turkey, but she might not be able to take her daughter Peri with her. Peri has regular contact with her father, and I have no idea what attitude he might take to a move to Turkey.

His wife said in evidence that if necessary she would go to join him in Turkey, but she might not be able to take her daughter Peri with her. Peri has regular contact with her father, and I have no idea what attitude he might take to a move to Turkey.

I do not consider that it would be out of all proportion for the Appellant's criminal history to lead his entire family having to re-locate to Turkey in order that they maintain a life together."

11. Then as regards Article 8 she merely held that the test whether the case     was     "truly exceptional", propounded in this court in Huang [2005] EWCA Civ 105, was met. The test has of course been held to be inapt by the House of Lords in the same case.
12. In finding that the immigration judge had made an error of law the AIT laid     some emphasis on the decision of this court in N (Kenya) [2004] EWCA Civ1094 where in a case involving the prospective removal or deportation of an alien who has committed serious crimes in this jurisdiction the court laid particular emphasis on the weight to be attached to the public interest in the removal or deportation. May LJ said:

"64 The discretion is to balance the public interest against the compassionate circumstances of the case taking account of all relevant factors including those specifically referred in paragraph 364 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 and 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".

And then going to the next paragraph, 65, May LJ continued:

"The risk of re-offending is a factor in the balance, but, for very serious crimes, a low risk of re-offending is not the most important public interest factor."

Then Judge LJ as he then was said this at paragraph 94 in the same case:

"In summary, the essential features which led to the adjudicator differing from the Secretary of State were his factual conclusions that the risk of future offending by the appellant was low, or very low, and that the deportation order would impact heavily on his family and family life. Although the future risk was low, it was not extinguished, and even if strong, the family life to be preserved has, until now, at any rate, been extremely unusual if only because the members of the family have never lived together . When set against the public interest and the specific requirement that the nature of the offences committed by the appellant should have been taken into account, in my view the decision to differ from the Secretary of State's decision was not one which could reasonably have been reached by the adjudicator".

13. After setting out the passage from the trial judge's sentencing remarks in the present case which I have already cited, the AIT said this:

"31. In light of those remarks and the serious nature of the offences of which the appellant was convicted it was incumbent upon the Immigration Judge to give careful consideration to the public interest in expressing its abhorrence at such offences, and in removing individuals with no right of residence in the United Kingdom who commit such offences, unless there is some particularly pressing reason why such removal should not take place. The Immigration Judge failed to do so. That was clearly a material error of law on her part".

14. Ms Hulse submits that this was a misdirection by the AIT because in truth the immigration judge did properly take into account the impact of the appellant's criminal convictions. She did so at paragraph 36 of her determination before setting out as bullet points the factors which, as I have already indicated, she held favoured the appellant not being removed. At paragraph 36 she stated:

"The offences were indeed abhorrent, and the fact that he pleaded not guilty, and put his former wife and children through a contested hearing is to be deprecated. His former wife was likely to have been traumatised by the experience."

I have to say I consider that this seriously understates the gravity of the appellant's crime. The AIT's point moreover was not that the immigration judge had forgotten or ignored the fact of the appellant's criminal convictions but that they had simply failed to accord anything like due weight to their gravity. Rape is a crime which causes much revulsion in the mind of right-thinking people. If it is committed by an alien with no right or settled right to remain here, public policy will very likely call for the criminal's removal or deportation; and only the most pressing compassionate factors will be capable of tilting the balance the other way. I regard such a proposition as no more than dictated by ordinary humanity. The immigration judge did not recognise that critical aspect of the balance to be struck. Her decison contains what is little more than a perfunctory acknowledgment of the gravity of the crime followed by a list of bullet point factors said to go in the appellant's favour, none of which is as pressing as might be required and some of which do no more than point to the absence of further vice rather than the presence of virtue. I consider that the immigration judge's approach was unreasonable, with respect to her, and the AIT were quite right to find an error of law.

15. In those circumstances it will be no surprise that I consider that the AIT's own decision on the merits is well supportable. At paragraphs 41 to 49 they gave four reasons for dismissing the appeal: One, the nature and combination of the appellant's offences. Two, the appellant has never had any legal entitlement whatever to remain in the United Kingdom save for an initial period of six months upon his visitor's visa 1998. His claim to compassionate circumstances or Article 8 rights depends critically on his second marriage, contracted when to the knowledge of all relevant parties his immigration status was at best precarious. Three, the three older children from the first marriage are quite old enough to decide for themselves where they will live; indeed now they are adult. The younger children, that is to say the children of the second marriage, are quite young enough to adapt to life in Turkey. The stepdaughter's case is more troubling, but she is now 17 and has elected to stay with her mother. If her father were to raise objections should she choose to go to Turkey, a family court, said the AIT, would be likely to attach considerable weight to her own views; that surely must be right. The fourth factor which the AIT took into account was the sentencing judge's recommendation for deportation.
16. In my view these points are all well taken. The decision of the AIT is not as it seems to me flawed by any error of law or want of proper reasoning. In particular it is not flawed by want of an express reference to the section 37 report or the Social Services background. The appellant's fitness as a parent was, so to speak, a given in the AIT's reasoning. It is clear moreover that the AIT had the family court background in mind -- see paragraphs 20 and 23 where they recite Ms Hulse's argument. I have to say moreover that Ms Hulse's submission that the fact that the appellant was an overstayer was irrelevant is in my view misconceived. There is nothing wrong, finally, with the AIT's reference to and reliance on the sentencing judge's recommendation for deportation.
17. Despite Ms Hulse's determined efforts I regard the appellant's points on this part of the case as being no more than pleas to the merits. We are only concerned with the legality of the AIT's decision. That in my judgment has not been undermined by anything we have heard in this appeal, which I would dismiss for the reasons I have given.

Lady Justice Arden, DBE:

I agree.

Lord Justice Moore-Bick:

I also agree.

Order: Appeal dismissed.