England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
SENIOR IMMIGRATION JUDGE GLEESON
ASYLUM AND IMMIGRATION TRIBUNAL

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/05/2008

Lord Justice Wall:

Introduction

1. The appellant is a citizen of Jamaica, where he was born on 15 September 1975. He arrived in the United Kingdom (the UK) at the age of 22 on 11 December 1997 as a visitor with leave to enter for six months. He then applied for leave to remain in the UK for reasons of education, and leave was granted, initially to 30 September 1999 and then until 30 September 2000. On 1 July 2000 the appellant married a British Citizen and applied for further leave to remain in the UK as the spouse of a British Citizen. That leave was granted until 9 November 2001. The Appellant has leave to remain as the spouse of a British citizen since 21^st November 2006.
2. In June 2001, the appellant was arrested in connection with the death of the father of a child born to the appellant's wife. The appellant was remanded in custody. He was initially convicted of the man's murder, and sentenced to life imprisonment. However, the murder conviction was subsequently quashed by the Criminal Division of this court, and in January 2004, the appellant, following a retrial, was convicted of manslaughter. He was sentenced to six years imprisonment, but was released on 13 June 2005.
3. On 31 May 2005, whilst he was still in prison, the Home Office wrote to him and advised him that, after considering representations which it had received from him, it had concluded that his deportation would be conducive to the public good.
4. On 16 November 2005, the Home Office notified the appellant of its decision to require him to leave the UK. The appellant appealed against that decision to the AIT, and in a determination promulgated on 15 February 2007 by James Simpson, an Immigration Judge (the first determination) his appeal was allowed both under the Immigration Rules and under ECHR Article 8.
5. The Secretary of State sought a reconsideration of the first determination on the grounds that the AIT had made a material error of law. That application was granted on 9 March 2007 by a senior immigration judge. The reconsideration itself was conducted by Senior Immigration Judge Gleeson on 8 June 2007, and her determination was promulgated on 8 August 2007. She held that there was a material error of law in the first determination and went on to substitute her own decision, which was to dismiss the appellant's appeal against the deportation order both on Human Rights grounds and under paragraph 394 of the Immigration Rules.
6. Permission to appeal to this court was refused by Senior Immigration Judge Gleeson on 7 September 2007, and by Sir Henry Brooke on paper on 9 November 2007. However, at an oral hearing on 21 January 2008, ([2008] EWCA Civ 89) Carnwath and Thomas LJJ granted permission to appeal on two grounds, namely; (1) that the first determination was not erroneous in law, and that Senior Immigration Judge Gleeson had herself committed an error of law by so finding; and (2) that Senior Immigration Judge Gleeson had not been entitled to reopen the factual decisions made in the first determination in the way that she had.
7. In relation to ground (1) it was submitted on the appellant's behalf, in particular, that the first determination had not ignored the considerations raised by this court in N (Kenya) v Secretary of State for the Home Department) (N (Kenya)) [2004] EWCA Civ 1094, [2004] INLR 612; rather, it had simply concluded that on the basis of the particular facts of the case, the decision of the Secretary of State to deport the appellant had not been justified. This, it was argued, was a question of judgment, not an error of law. Specifically in relation to ground (2), it was also pointed out that it was at the first determination that oral evidence had been given, and that it was not, accordingly, open to the Senior Immigration Judge to reopen the findings of fact which Immigration Judge Simpson had made.
8. It follows, in my judgment, that the first and critical question for this court is whether or not there was an error of law in the first determination, with the consequence that SIJ Gleeson had herself committed an error of law in so holding in her reconsideration of the appellant's appeal.

The statutory framework

9. This is helpfully set out in the skeleton argument prepared for this appeal by counsel for the Secretary of State. As it is uncontentious, I reproduce it from that source.
10. Section 3(5) and (6) of the Immigration Act 1971 (the 1971 Act) provide as follows:

(5) 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) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."

11. Section 5(1) of the 1971 Act provides that: -

Where a person is under 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.

12. Paragraph 363 of the Immigration Rules summarises the circumstances in which a person in the appellant's position becomes liable to deportation as follows:

363. The circumstances in which a person is liable to deportation include:

(i) where the Secretary of State deems the person's deportation to be conducive to the public good.

13. Paragraph 380 of the Immigration Rules provides:

A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the status of Refugees or the Human Rights Convention.

14. At the time material to this appeal, paragraph 364 of the Immigration Rules was in the following terms:

364. Subject to paragraph 380 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 material 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 with 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.

N (Kenya)

15. In N (Kenya) the appellant had committed serious criminal offences for which he was sent to prison for a total of 11 years. Whilst in prison he went through a ceremony of marriage with the mother of his child, who had been born shortly before the appellant was incarcerated. After completing his sentence, he remained in immigration detention awaiting deportation. He appealed to an adjudicator, who considered that the most important factor in the case was the risk of the appellant re-offending, which he concluded was very low. The adjudicator also held that there was a genuine and strong family bond - albeit that the family had never lived together - and that the appellant's family needed him. In addition, the adjudicator took the view that it would be very difficult for the family to relocate either to Kenya or to Dominica, the latter being the country of origin of the child's mother. He accordingly allowed the appellant's appeal against deportation. The Secretary of State appealed successfully to the IAT, and the appellant appealed to this court, which, by a majority (Judge and May LJJ, Sedley LJ dissenting) dismissed his appeal.
16. In his dissenting judgment, Sedley LJ made it clear that he agreed with the majority's account of the law, but disagreed with the conclusion they had reached on the facts. He specifically agreed with what May LJ said in paragraphs 52 to 54 of his judgment in the case, which I do not propose to set out in extenso. However, in paragraph 54, May LJ said:-

In the present case, we are concerned with the exercise by the adjudicator of his statutory jurisdiction on a deportation appeal. The balance to be struck is exemplified by the opening sentence of paragraph 364, whereby "the public interest will be balanced against any compassionate circumstances of the case". Insofar as compassionate circumstances might not entirely encompass the appellant's right to respect for his private and family life, these fall to be considered in the balancing exercise by the introductory words of paragraph 364 and by statute. In substance, the Article 8 proportionality question and the paragraph 364 balance are the same. The adjudicator had by statute an original discretion. But he does not have expertise in judging how effective, any more than does the court, a deterrent is a social, economic and political policy of deporting foreign nationals who have been convicted of serious offences once they have served their sentences. For this reason, in my judgment, an adjudicator in a deportation appeal, in exercising his statutory discretion, should give appropriate weight to the Secretary of State's policy on deportation in cases such as this.

(Emphasis supplied)

17. And in paragraph 64 of the same judgment, he added:-

In a deportation appeal under section 63(1) of the 1999 Act, the adjudicator has an original statutory discretion as provided in paragraph 21(1) of Schedule 4 of the 1999 Act. 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 to 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 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. It is for the adjudicator in the exercise of his discretion to weigh all relevant factors, but an individual adjudicator is no better able to judge the critical public interest factor than is the court. In the first instance, that is a matter for the Secretary of State. The adjudicator should then take proper account of the Secretary of State's public interest view.

(Emphasis supplied)

18. In paragraph 83 of the same decision, Judge LJ said: -

The "public good" and the "public interest" are wide-ranging but undefined concepts. 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.

(Emphasis supplied)

19. Counsel for the appellant did not demur from the proposition that these observations applied in the instant appeal, and in my judgment, the question of whether or not there was an error of law in the first determination falls to be decided by reference to them. It is, accordingly, that question to which I now turn.

Was there an error of law in the first determination?

20. It was common ground between the parties that if there was no error of law in the first determination, that was the end of the matter. If that was the case, the reconsideration should not have been ordered, and neither the second AIT nor this court had any power to interfere with the first determination. Although Senior Immigration Judge Gleeson stated in her conclusion that "the original Tribunal had made an error of law" she does not in terms say what it was. To an outsider like myself, and also, I suspect, to the appellant, this omission is unfortunate. One therefore has to examine the first determination, and Senior Immigration Judge Gleeson's commentary on it in some detail.
21. Our attention was focused on paragraphs 7 and 12(f) of the first determination which, in my judgment, have to be set out in full, even though both are paragraphs of some length. Firstly, paragraph 7:-

The negative side of the Appellant's case relates to his conviction for manslaughter. The Appellant was at first convicted of murder in March 2002 and sentenced to life imprisonment. This conviction was quashed by the Court of Appeal and a new trial ordered which took place in January 2004 when the Appellant was convicted of the lesser offence of manslaughter and sentenced to 6 years imprisonment. He was released from detention on 13^th June 2005. The death giving rise to the conviction occurred of a young man of about the same age as the Appellant in circumstances of a domestic nature. The facts are set out in a probation report in the Appellant's bundle. The victim had previously been in a relationship with the Appellant's wife. There were difficulties arising from that relationship and an 'arbitration meeting' took place on the day of the offence at social service offices. The meeting was described as "volatile and difficult". The meeting was unsuccessful in resolving the conflict and there was considerable hostility between the victim and the Appellant. The Appellant and his wife remained in social services offices for about 30 minutes after the end of the meeting and having accompanied his wife to a bus stop the Appellant began to cycle home. At a road junction the Appellant was confronted by the victim and his mother following which a cycle chase ensured. The Appellant tried to out-cycle the victim but was quickly overhauled by him and the two men dismounted and confronted each other. The victim was verbally abusive towards the Appellant and threatening. The victim was physically larger than the Appellant, was a martial arts practitioner and had a history of violence. The Appellant drew a modelling knife from his trousers in an attempt to scare the victim which had the opposite effect and a struggle ensued between them with both of them falling to the floor. The victim suffered 2 stab wounds which proved fatal but at the end of the scuffle stood up and was last seen by the Appellant talking to his mother. The Appellant later heard of the victim's death and surrendered himself to the police some days later. There is nothing in the judge's sentencing remarks which contradicts this explanation. The judge made adverse comments about the Appellant taking a knife with him, willingly engaging in a fight with the victim and deliberately threatening him with the knife. The judge also commented that the Appellant was otherwise a man of good character who all his life had been honest, responsible and hardworking and that the killing was totally out of character committed at a time stressful to the Appellant. His probation report concludes he presents "a low level risk of re-offending" as he has shown no propensity to commit crime.

22. Secondly, paragraph 12(f):

The Appellant's most difficult hurdle is his conviction for manslaughter. The Court accepts it is a very serious offence and the starting point errs in favour of the Respondent's decision. The Court has however looked very closely at the circumstances in which it was committed. It occurred within the context of circumstances which were emotionally charged and were of a domestic nature involving the Appellant's wife and her previous partner. There had been a meeting earlier that day to try to resolve matters and it is not disputed the Appellant attempted to act in a peacemaking conciliatory way. Although the meeting became heated and was unsuccessful the Appellant showed restraint and good judgement in remaining at the meeting location for about half an hour to allow the victim to depart so as to avoid confrontation. It is not disputed that the victim was an equal participant, if not the front-runner, in the confrontation which occurred later which led to his death. It is easy in the rarefied and calm atmosphere of this Court to be critical of the Appellant's actions but the Court has attempted to view the situation as it developed on the day. It accepts the Appellant was in fear and that the victim was physically larger, a known martial arts participant and a man prone to violence. The Appellant reacted in the heat of the moment and the Court accepts he drew his knife in the hope it would prevent violence. Manifestly that was the wrong decision which led to the loss of a life and the Appellant's conviction by a jury of the crime of manslaughter. Although the precise basis of that conviction is unknown to this Court, it is known that the Appellant faced a re-trial on a charge of murder and for manslaughter to be the result it follows the jury must have been satisfied the Appellant did not intend to kill or cause grievous bodily harm. The Appellant was sentenced to 6 years imprisonment for his crime, which as his Counsel submits, implies it was not regarded as being at the higher end of conduct amounting to manslaughter. He has been punished for his crime and has served his sentence. The Court is satisfied the Appellant does not have a propensity to commit crime and has never been convicted of any other offence. His probation officer regards the Appellant as being at low risk of committing further offences. The Court accepts that prognosis based both on his lack of past criminal propensity and the circumstances surrounding the crime for which he was convicted. Those circumstances are unlikely to be repeated and if such were to occur this Court is satisfied the Appellant is likely to act differently. This Court therefore concludes there is a very low risk of future offending and therefore little to protect the public from by deporting the Appellant.

(Emphasis in the original)

23. Counsel for the appellant was, of course, able to point to the opening sentence of paragraph 7 and to the first two sentences of paragraph 14(f). In my judgment, however, Senior Immigration Judge Gleeson was correct in paragraphs 27 and 28 of her decision when she stated that :-

27 I also note the seriousness of the offence for which the appellant was imprisoned. There is no doubt in my mind that the legislative objective of paragraphs 364 is sufficiently important to justify limiting a fundamental right where murder or manslaughter is concerned. The measures designed to meet the legislative objective (by removing from the jurisdiction persons who have committed such offences) are rationally connected to it.

28 Set against the serious crime he committed, I do not consider that the Immigration Judge's analysis of this appeal gives sufficient weight to what was necessary to accomplish the objective of public safety, or that he properly balanced the needs of these individuals against those of society. The appellant went to a meeting at Social Services which was an arbitration meeting. He went armed with a knife. He did not use it then but he did use it later that day; the sentencing remarks note that instead of leaving the scene or seeking refuge in a nearby shop, the appellant drew his penknife from his pocket, opened it, fought his ex-wife's partner, and used it to stab him twice, On that basis it is very difficult to understand how the Immigration Judge thought it proper to allow the appellant's appeal.

24. In my judgment, it is in these passages that Senior Immigration Judge Gleeson correctly identifies an error of law in the first determination. The point, I think, shortly stated, is this. N (Kenya) makes it clear that proper weight must be given to the Secretary of State's policy on deportation, and in particular to the fact that she has taken the view, in the public interest, that crimes of violence such as that committed by the appellant are sufficiently serious to warrant deportation. In such circumstances, her assessment had to be taken as a given, unless it is palpably wrong. It was, accordingly, at best a questionable operation for the first determination to evaluate the seriousness of the offence.
25. My reading of paragraphs 7 and 12(f) of the first determination leads me to the clear view that the adjudicator was impermissibly seeking to diminish the seriousness of the offence committed by the appellant.
26. In paragraph 7 of the first determination, the adjudicator takes the facts of the case from a probation officer's report to the Parole Board dated 11 May 2004, a copy of which was supplied to us, as were the sentencing remarks by the trial judge (Judge Anwyl QC).. There were some discrepancies between the two, not the least being the Judge Anwyl's statement that the appellant had "entered willingly into a fight when you could simply have left the scene or sought refuge in a nearby shop" and that the appellant had "gone out that morning with a pen knife in your jeans pocket. You quite deliberately took it out, opened it up and used it". She also recorded that the appellant had stabbed his victim at least twice and had then "left the scene calmly and disposed of your blood stained trousers and knife and your bicycle, any object that could connect you with the incident involving (the deceased)".
27. The first determination contains the highlighted statement in paragraph 12(f) that the conviction for manslaughter meant that the jury must have been satisfied that the appellant "did not intend" to kill or to cause grievous bodily harm. (emphasis). As Maurice Kay LJ pointed out in argument, this by no means followed. If, as counsel for the appellant told us on instructions, the basis of the conviction for manslaughter was provocation, such an intention might have been present. There may, accordingly, be a material error of law in the first determination in relation to this point, even though we, like the adjudicator, did not have formal proof of the type of manslaughter in question.
28. I do not, however, base my conclusion on the precise nature of the conviction. What seems to me clear from the paragraphs from the first determination which I have set out in paragraphs 22 and 23 above is that Immigration Judge Simpson plainly sought to minimise the appellant's offence, and equally plainly, in my judgment, did not give proper weight to the Secretary of State's policy in relation to deportation. I note that the bulk of paragraph 12(f) is taken up with matters which are exculpatory. The word "domestic", for example, is used in relation to the offence in a way which is plainly designed to reduce its significance: - see, in particular, the conclusion that there was "a very low risk of future offending and therefore little to protect the public from by deporting the appellant".
29. In these circumstances, I am satisfied that on a fair reading of the first determination, Senior Immigration Judge Gleeson was right, in the extracts from paragraphs 27 and 28 of her determination and reasons, which I have cited in paragraph 24 above, to identify an error of law in the first determination which justified her reconsideration.
30. In my judgment, the finding that there was indeed an error of law in the first determination is itself determinative of this appeal. Having identified the error of law in the first determination, Senior Immigration Judge Gleeson is at pains not to repeat it. She did not, moreover, in my judgment, reopen factual decisions made in the first determination. Her analysis of the appellant's offence is taken from the documentation. She received no further oral or documentary evidence in relation to it. Moreover, in the first determination, there had been "no evidence before the court as to the standard of medical care available in Jamaica" in relation to diabetes, a condition from which the appellant's wife suffers. Senior Immigration Judge Gleeson was, in my judgment, plainly entitled to have regard to the country of origin information report available to her in relation to the provision of diabetes treatment in Jamaica.
31. The only error which I can detect in her adjudication is her conclusion in paragraph 31 that: "A man who has killed once on such relatively slender grounds may do so again, especially if he is armed with a penknife and has time to draw it". In my judgment, this conclusion was both unwarranted on the evidence and unnecessary. However, this finding, in my judgment, is not of sufficient gravity to vitiate her conclusion.
32. In these circumstances, whilst counsel for the appellant strove manfully to uphold the first determination, he was, in my judgment, unable to do so.
33. For the reasons I have given. I would, accordingly, dismiss this appeal.

Lord Justice Maurice Kay

34. I agree.

Lord Justice May

35. I also agree that this appeal should be dismissed for the reasons given by Wall LJ.