Case No: C5/2008/0354
Neutral Citation Number: [2008] EWCA Civ 319
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. IA/10646/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 17th March 2008

Before:

LORD JUSTICE TUCKEY
and
LORD JUSTICE THOMAS
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Between:

	AD (SERBIA)
	Appellant	
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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Miss F Webber and Mr A Goodman (instructed by Messrs Sutovic & Hartigan) appeared on behalf of the Appellant.

Mr R Palmer (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.

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Judgment

Lord Justice Tuckey:

1.	These are applications by AD for permission to appeal out of time and for permission to appeal from the decision of the AIT, promulgated on 19 October 2007 dismissing the applicant’s appeal against the Secretary of State’s decision to deport him. 

2.	The applicant, a twenty-three year old citizen of Serbia and Montenegro from Kosovo, arrived in the United Kingdom in October 2001 and was subsequently given indefinite leave to remain because of the risk to him at the time as someone of Gorani ethnicity living in Kosovo.  However, on 18 May 2005 he pleaded guilty to an offence of possessing heroine with intent to supply and was sentenced to eighteen months in a young offenders’ institution.  He had previously been convicted of criminal damage and having a bladed article, and had been cautioned for possession of an imitation firearm in a public place, possession of drugs and theft.

3.	Relying on Article 33(2) of the convention, section 72 of the Nationality Immigration and Asylum Act 2002 and paragraph 364 of the Immigration Rules, the Secretary of State ordered his deportation on the basis that it was now safe to return him to Kosovo.  The applicant appealed to the AIT from that decision on the grounds that he could rebut the section 72(4) presumption that he was a danger to the community.  An immigration judge considered this appeal, a related Article 8 claim and a contention that he would -- contrary to the Secretary of State’s view -- not be safe in Kosovo if he was returned there.  

4.	The immigration judge’s decision was promulgated on 15 February 2007.  In short he dismissed the appeal and each of the claims to which I have referred. Reconsideration of this decision was ordered by the AIT, limited to the question of whether the applicant had rebutted the presumption that he continued to be danger to the community.  That application was packaged (as ever) as an error of law, but in truth it was no more than an error of fact for which reconsideration should not have been ordered.  However, ordered it was and a reconsideration took place before Senior Immigration Judge Chalkley, who correctly dismissed the appeal on the basis that the identified paragraphs in the application for consideration disclosed no error of law.  

5.	The time for appealing this decision to the Court of Appeal expired on 26 October 2007.  An appeal and its accompanying application to make it out was first filed on 18 February 2008, by which time the applicant had been notified that he was to be removed on 6 March 2008.  Moore‑Bick LJ stayed this order, pending today’s hearing.  The Notice of Appeal at that time took the single point that the applicant’s deportation should have been considered under Article 32 of the convention and not Article 33(2).  The application for an extension of time blamed the applicant’s previous advisers for not appreciating this point, said that the current representatives were first instructed on 28 December 2007, after which the point then taken came to light, but it was not until 1 February 2008 “after detailed research” that it was considered to be sound and then “the matter had been prosecuted with due expedition”.  This point was signalled as one of great importance in the field of asylum and immigration law.  

6.	Moore‑Bick LJ directed that skeleton arguments should be filed for today’s hearing by 4 pm on 12 March 2008.  On that date amended grounds of appeal and a twenty-two page skeleton argument prepared by Miss Frances Webber were filed.  These grounds abandoned the single point taken in the first Notice of Appeal which was, as everyone now concedes, largely hopeless, and take a series of new points said to raise issues of wide-ranging importance.  Put shortly they challenge Section 72 of the 2002 Act and the 2004 order made under it, which specifies which crimes are particularly serious on the grounds that they are incompatible with Article 33 of the convention and the related community law directive.  Incompatibility is said to arise through the imposition of too low a threshold as to what constitutes a particularly serious crime; through the imposition of an irrebuttable presumption of particular seriousness; through the reversal  of the burden of proof in respect of the central question of whether the refugee constitutes a danger to the community and the country; and through, in effect, reversing the burden of proof in requiring a refugee to reprove his case in respect of the issue of risk on return.  

7.	Now all of this, I have to say, as I made clear from the outset, is entirely unacceptable.  It is generally not open to a party to take a new point of law for the first time in the Court of Appeal which has never been raised at any stage during the earlier stages of the process, and to attempt to do so effectively five months after the time for appealing has expired makes matters worse.  

8.	The point now taken is obviously one which has interested commentators for some time.  If it was to be raised in this case it should have been raised very long ago.  However, I would have to temper my reaction to what has happened if I had thought that this point would get this applicant anywhere.  But I do not.  It is suggested that the possession of a Class A drug with intent to supply is, or is in this case, not a particularly serious offence. Anyone who knows anything about crime would not agree.  It is.   It is suggested that if the burden of proving that the applicant was not a danger to the community was on the Secretary of State, the result in this case might have been different.  Again, I disagree.  It seems to me there was ample evidence from which the conclusion could be drawn that this applicant did represent a continuing danger to the community, whichever way the burden of proof was placed.  It is said that the applicant was at some procedural disadvantage in the consideration as to whether it was safe to return him to Kosovo, but in the context of his Articles 2 and 3 claims the Secretary of State considered the position as to whether it was safe to return him to Kosovo; the AIT did so also, and reached a conclusion which was in no way premised upon any burden of proof one way or the other.  There is other objective material to support those conclusions.

9.	I would not, for those reasons, extend time to allow what I accept is an arguable point of some importance to be argued in this case.

Lord Justice Thomas: 

10.	I agree

Order:  Application refused