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
[AIT No: IA/05151/2006]

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th May 2008

Lord Justice Toulson:

1. The appellant is a citizen of Turkey. He was born on 5 September 1985. He entered the United Kingdom clandestinely on 28 January 2004 and claimed asylum. His appeal was refused on 4 February 2004 and an appeal against that refusal was dismissed on 6 April 2004.
2. On 24 September 2004 he was arrested on suspicion of having committed sexual assaults on two women, the first assault on 13 September and the second assault ten days later. He denied the accusations but was ultimately identified by both complainants on identification procedures. He entered not-guilty pleas and elected for trial at the Crown Court. On 11 May 2005 at Gloucester Crown Court he pleaded guilty to both offences. The case was  adjourned for a pre-sentence report. On 2 August 2005 at Bristol Crown Court he was conditionally discharged for two years on each offence and recommended for deportation under the Immigration Act 1971 section 6.
3. There was no appeal against the recommendation for deportation. On 5 May 2006 he was arrested for immigration offences. On 23 May 2006 the Secretary of State made a decision to make a Deportation Order against him under section 5(1) of the 1971 Act by virtue of the fact that he was liable to deportation under section 3(6) of the Act, that is to say by reason of the court's recommendation that he be deported. The Secretary of State's reasons for the decision were shortly set out in an accompanying letter.
4. The appellant appealed against the decision under section 82 of the Nationality Immigration and Asylum Act 2002. The appeal was heard on 2 September 2006 and was allowed by the tribunal for reasons promulgated on 14 September 2006. The Secretary of State applied for reconsideration and this was ordered by a senior immigration judge who considered that the first tribunal may have made a material error of law in two respects, that is in its application of HC 1337 and in not applying the principles in N (Kenya) v SSHD [2004] EWCA Civ 1094.
5. The order for reconsideration on the first ground reflected the grounds on which the Secretary of State had initially sought reconsideration, but that ground was abandoned before the reconsideration hearing took place, as is apparent from the skeleton argument of Mr Eicke for the Secretary of State prepared for that hearing. It was rightly abandoned because HC 1337 did not take effect until 20 July 2006, after the decision of the Secretary of State which was under challenge. I will come later to the significance of N (Kenya).
6. The matter then came before a more senior panel of the AIT, which heard argument on 27 March 2007. Its determination, dated 26 June 2007, was that the first tribunal had materially erred in law and that the appellant's appeal against the Secretary of State's deportation decision should be dismissed. Against that determination the appellant now appeals. Mr Nicol QC contends that the second tribunal was wrong to find that the first tribunal had materially erred in law, and further, that if the second tribunal was entitled to consider afresh the question whether the appeal should be allowed or dismissed, its own approach in deciding that the appeal should be dismissed was flawed.
7. Although there is no essential dispute between the parties as to the relevant statutory structure and principles to be followed, it is convenient to set them out in order to understand the context in which the argument arises. Sections 3(5) and (6) of the 1971 Act provide:

"...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; or

(b) another person to whose family he belongs is or has been ordered to be deported.]

(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."

8. The Crown Court is a court empowered by section 6 of the 1971 Act to make a recommendation under section 3(6) of the Act and such a recommendation forms part of the sentence for the purpose of being appealable to the Court of Appeal, Criminal Division. It is not part of the punishment so as to justify a reduction in the remainder of a sentence; R v Edgehill [1962] 47 Cr App R 41. The sentencing court has to decide first what sentence should be passed in order to reflect the gravity of the offence before considering separately the question whether to recommend deportation. Guidance on the use of the power to make such a recommendation was given by the Court of Appeal in R v Nazari [1980] 71 Cr App R 87. Lawton LJ said that the court is concerned with the question whether the defendant's continued presence in the United Kingdom is to its detriment and that:

"All a court does when it makes a recommendation for deportation is to indicate to the Secretary of State that in the opinion of the court it is to the detriment of this country that the accused should stay here."

It is then for the Secretary of State to take a view whether the defendant's deportation to his country of origin would be unduly harsh.

9. There is no legal objection to making a recommendation for deportation in respect of an offender granted a conditional discharge for an offence which could have been punishable with imprisonment.
10. Section 5(1) of the 1971 Act provides:

"Where a person is under section 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."

11. At the time with which we are concerned, the Secretary of State's general approach to the question whether to make such an order was stated in the Immigration Rules paragraph 364 as follows:

"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.

In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. 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 persons behalf."

The Court's recommendation.

12. The first panel had the judge's sentencing remarks and the pre-sentence report and seemingly a summary of the evidence, which we do not have. From their reasons it appears that on each occasion the appellant approached the complainant from behind and touched her in the groin or buttocks area. To one of them he said he wanted to have sex with her. The complainants reacted as might be expected and he walked away. The first tribunal quoted the judge as saying in his sentencing remarks:

"I accept entirely that you have not committed the most serious of crimes and I accept entirely that you do not have a long criminal record. These are, in one sense, minor offences, but having said that they are two offences of indecent assault on women which clearly caused them considerable distress. They were, in my judgment, caused by you as a result of your loneliness, your emotional immaturity and your isolation from your family in Turkey."

13. The pre-sentence report had recommended the appellant's attendance on a sex offender treatment programme, but he would not in practice have been available for such a program for two reasons. The first was that no such programme would be available for him until he reached the age of 21 and the second was that he did not speak good enough English.
14. In recommending deportation the judge expressed concern that the offences were very similar and had occurred within a short time of each other. He said:

"I think that there is a significant and serious risk were you to remain in this country, that you may commit a serious offence in the future and it is on that basis that I am making the recommendation for deportation."

The Secretary of State's decision.

15. In his letter of 23 May 2006, the Secretary of State stated that he had decided to act on the court's recommendation and that specific regard had been paid to paragraph 364 of the Immigration Rules. The letter said that the Secretary of State regarded certain types of offence as particularly serious, including sexual offences, and that he also took account of the seriousness of the offence as viewed by the sentencing court as reflected in the sentence imposed -- whether custodial or not -- as well as the effect that a crime of that type has on the wider community. As to the general seriousness of offences of this kind as conceived by the wider community, sexual assault is classified as a specified sexual offence in schedule 15 to the Criminal Justice Act 2003, and conviction of such offence requires the offender to register on the Sex  Offenders Register.

Grounds of Appeal against the Deportation Order.

16. By section 82(2)(j) of the Nationality, Immigration and Asylum Act 2002, a decision to make a deportation order is subject to a right of appeal. Section 84 provides that an appeal under section 82(1) must be brought on one or more or a number of grounds, including (f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules. Section 86 provides that a tribunal hearing an appeal under section 82(1) must allow the appeal, in so far as it thinks that a) a decision against which the appeal is brought, or is treated as being brought, was not in accordance with the law, including immigration rules; or b) a discretion exercised in making a decision against which the appeal is brought, or is treated as being brought, should have been exercised differently.
17. The second tribunal was concerned about the question how a challenge to the exercise of the Secretary of State's discretion under section 5 of the 1971 Act could be brought within any of the grounds under section 84 and specifically ground (f). It was concerned because that paragraph refers specifically to a discretion "conferred by immigration rules". Immigration rules are defined by section 113 of the Act as meaning rules under section 1(4) of the 1971 Act. Though section 1(4) makes a reference to such rules, it is section 2(3) which identifies the nature of the rules and the source of the Secretary of State's obligation to make them. That subsection provides:

"The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter…"

18. I recognise that it does involve some stretch of language to describe an exercise of the Secretary of State's discretion under the Act as a discretion conferred by immigration rules, but it is common ground between the parties that the statute should be so construed; and I agree that this must be taken to have been Parliament's intention, for otherwise the right of appeal against a deportation decision, envisaged by sections 82(1) and section 86, would be substantially emasculated. The language of section 84(1)(f) may be explained because in practice many, and perhaps most, decisions in this area would in reality be taken by officials acting within the guidance laid down by immigration rules.
19. Section 86 replaces similar provisions under previous legislation, which were considered by this court in N (Kenya), and it is common ground between the parties that the guidance laid down by this court in relation to those provisions apply equally to section 86. Although the tribunal is not confined to a review of the Secretary of State's decision applying Wednesbury or similar considerations but has an independent decision to make, it must nevertheless address the public policy considerations which have influenced the Secretary of State's decision and take proper account of the Secretary of State's view, although it may ultimately come to a different view as to the weight to be attached to those considerations on the facts of the particular case. In N (Kenya) v SSHD [2004] EWCA Civ 1094, Judge LJ said at paragraph 83:

"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 judgement. Provided he is satisfied that he would exercise the discretion of '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."

20. Mr Nicol rightly pointed out that the facts of that case were grave indeed, but the guidance offered is, in my view, of general application when a tribunal is embarking upon the exercise of an appeal against a deportation decision made by the Secretary of State. There is, however, one significant additional factor in the present case. In that case, the power to deport arose under section 3(5) because, although there had been a conviction for a serious criminal offence, there had been no recommendation for deportation by the court.
21. In this case there was a recommendation by the court. Where there has been such a recommendation, which the Secretary of State decides to follow, not only is that decision plainly material to the Secretary of State's decision, but it is also material when the tribunal is considering the issues of public interest, including the public confidence in the administration of justice. Put simply, it will not lead to public confidence in the administration of justice if a view expressed by the sentencing court -- that an offender's continued presence in the United Kingdom will be contrary to public interest -- is negated by a decision of a tribunal that he should be deported, unless there is a clearly explained reason for the tribunal taking a different view. There may, of course, be good reasons for a tribunal to take a different view. The circumstances may have materially changed in the meantime, or there may be reasons to do with conditions in the offender's country of origin, which would not have been matters for the sentencing court to evaluate and which would make it unduly harsh for the offender to be deported. The public interest in the coherence of the administration of justice requires that such reasons should be explained.

The first tribunal's decision to allow the appellant's appeal.

22. At paragraph 14 of its reasons the tribunal stated:

"We find that there is a something of an anomaly between the imposition of a two year conditional discharge for the offences on the one hand and the recommendation for a deportation on the other hand."

23. It went on to consider what might be the explanation for such perceived anomaly, and it concluded that the primary reason given by the trial judge for that anomaly was:

"…the concern that because the appellant could not benefit by the Sex Offenders Treatment Programme, there existed a significant and serious risk that if he were to remain in this country then he might commit a serious offence in the future."

24. The tribunal observed that the passage of fifteen months had given the appellant the opportunity to demonstrate that he had learnt his lesson and had not committed any offence and certainly not the serious offence that was of concern to the trial judge.
25. Next the tribunal noted that the appellant had no legal immigration status in the United Kingdom because his application for leave to remain had been refused. It went on to observe that the fact that the appellant had no legal immigration status necessarily meant that, as things stood, it would be necessary for him to leave the United Kingdom in order to make an out of country application for return, and that if he were made the subject of a deportation order he would not be permitted to make an application for entry clearance. That was a significant penalty.
26. The tribunal also referred to a statement of policy made by the Secretary of State in the House of Commons on 25 July 2006, in which he told Parliament:

"We have said that where people have been given a custodial sentence over a given time, which we have not specified, at present it is one year for non-European economic area nationals and two years for EUA nationals, there should be a presumption of deportation. There will be cases where in any civilised society we would decide that we ought not to implement that…"

The tribunal continued as follows:

"That statement does not lay down cast iron rules, but it is guidance available to us. This appellant was not given a custodial sentence, let alone a sentence of one year. That does not mean that a deportation order cannot be appropriate in certain circumstances. However, in our view there would be need to be the most exceptional circumstances relating either to the appellant himself or to the offences before we could find that a person sentenced to a two-year conditional discharge could reasonably be made the subject of a deportation order. To do so would be to go outside the general guidelines as they were explained to Parliament by the Home Secretary so recently. We are unable to find the existence of such facts which could justify going outside the guidelines in this case."

27. From that reasoning the tribunal concluded that the decision made by the Secretary of State did not represent a proper exercise by him of his discretion and was therefore not a lawful decision. The appeal was therefore allowed.

The appellant's criticisms of the second tribunal's decision.

28. The role of the second tribunal, on reconsideration, was considered by this court in DK (Serbia) v SSHD [2006] EWCA Civ 1747. Such a tribunal has to consider, first, whether the first tribunal had erred in law, restricting itself to possible errors of law identified by the immigration judge who ordered reconsideration. If, but only if, it concludes that there was such a material error of law, it then proceeds to reconsider whether or not the appeal against the Secretary of State's decision should be allowed.
29. Mr Nicol criticised the second tribunal's reasons for finding that there had been a material error of law by the first tribunal in a number of ways. The second tribunal held at paragraph 52 that the first tribunal had not decided that the discretion should have been exercised differently. It decided something quite different, namely that the decision was not lawful. Mr Nicols submits that this was an erroneous approach; the first tribunal had indeed decided that the Secretary of State's discretion should have been exercised differently. Despite Mr Eicke's attempts to persuade us that the second tribunal's approach on this issue is correct, I have no doubt that Mr Nicol's criticism on this ground is well founded.
30. The second tribunal held that it was an material error of law on the part of the first tribunal to take into account the statement of policy made by the Secretary of State to Parliament on 25 July 2006 because that statement post-dated the Secretary of State's decision. I would again accept Mr Nicol's argument that there was here no error of law, let alone a material error of law by the first tribunal. He pointed out that there was no suggestion that the statement of policy announced on 25 July was intended to improve the position of a prospective deportee. Insofar as there was a departure in policy, it was a departure in the direction of more readily ordering deportation than in the past. I accept Mr Nicol's submission that the tribunal was entitled to have regard to the Secretary of State's statement. Whether its involved a material error of law is another matter.
31. Mr Nicol also criticised the second tribunal's approach to the sentence imposed by the sentencing court. The second tribunal suggested that the sentencing judge may have imposed a less heavily punitive sanction -- and a sentence could hardly be more lenient than a conditional discharge -- because it was also ordering deportation and had in mind the principle of totality. Mr Nicol rightly points out that if the sentencing court had proceeded in that way, it would have been acting contrary to the clear guidance laid down by the Court of Appeal Criminal Division. It was wrong, therefore, to infer that the sentencing judge had rationalised his sentence in that way. Here too, I accept that there was an error in the second tribunal's reasoning process for concluding that the first tribunal made an error of law.
32. Somewhat curiously in the circumstances that the sole live ground on which reconsideration had been ordered was whether the first tribunal had properly followed the guidance of this court in N (Kenya), the determination of the second tribunal made no reference to that decision. However, we have to consider not merely whether the reasoning process of the second tribunal can be legitimately attacked, but whether its decision that the first tribunal had made a material error of law was itself a wrong decision as a matter of law.
33. In my judgment, the first tribunal's decision did involve manifest errors of law. First, its statement that there would need to be the most exceptional circumstances relating either to the appellant or to the offences before it could find that a person sentenced to a two-year conditional discharge could reasonably be made the subject of a deportation order is, in my judgment, a wrong approach for it to have adopted. It does not arise from the Act or from the Rules. It is tantamount to saying that where a sentencing court has made an order for conditional discharge coupled with a deportation order, only in the most exceptional circumstances would the tribunal permit such a recommendation to be carried out. That cannot be right. The considerations referred to by Judge LJ in N (Kenya) are highly relevant here, albeit that in that case there had been no recommendation for deportation. As I have already said, it would not conduce to public confidence in the coherence of the administration of justice if the position were that while a recommendation for deportation may itself be an unacceptable exercise of the sentencing judge's jurisdiction, nevertheless only in the most exceptional circumstances will effect be given to it if the sentence has been one of conditional discharge. Mr Nicol sought to argue that these words were not really an important part of the first tribunal's decision-making process, but were an unnecessary observation after they had reached an impeccable decision of fact. That is not how I read the reasons.
34. That is not, in my view, the only serious error shown in the reasoning of the first tribunal. It plainly took into account as a material factor that the appellant had no legal immigration status in the United Kingdom. I can see that an offender's immigration status might have some relevance to a sentencing court's decision whether to recommend deportation, and to the Secretary of State's decision whether to act on that recommendation, if the offender had been lawfully in the United Kingdom for a significant period of time and had built up a life here, because the court or Secretary of State would then have to consider whether, weighing the gravity of the offence against the disruption to his and his family's life, he ought to be deported. But I fail to see how the fact that he has no right to be here can be a relevant factor in deciding whether deportation is merited. If the result were that those who have some form of lawful right to be in the United Kingdom are, on that account, more likely to be deported than those who commit similar offences but have no right to be here at all, that result would surely seem to an ordinary person to be bizarre and indeed perverse.
35. Next, I do not consider that the first tribunal was right to find that the sentence involved an anomaly and to seek to speculate as to why the sentencing judge had passed the sentence that he had. The sentencing judge had to perform two exercises. He had to pass a sentence which reflected the seriousness of what the offender had done, and he had to consider the protection of the public. It is by no means impossible to have a situation where the offence itself may merit a mild sentence but there may nevertheless be a real risk to the public which makes the offender's continued presence in the UK undesirable.
36. The sentencing options open to the judge in the circumstances would have been very limited. If he had decided that the offences did not cross the custodial threshold then the only alternatives realistically open to him, apart from a conditional discharge, were a community punishment and a fine. There are obvious difficulties about a community punishment in the case of somebody who is not supposed to be in the community at all, and is liable to be removed at any moment because their presence in the country is unlawful, and we have no information about the offender's financial means. I fully accept that Mr Nicol's point that it is unwise for us to seek to speculate as to the sentencing judge's reason for making conditional discharge orders, but that is, in truth, what the first tribunal did.
37. For all those reasons I am satisfied that the decision of the second tribunal that the first tribunal had erred in law was correct, although my reasoning is different. The question then arises whether the second tribunal's decision to dismiss the appeal can be successfully challenged. Mr Nicol criticised it on a number of grounds but, as I read the decision, the critical paragraphs which show the reasoning for concluding that the appeal ought to be dismissed were the following paragraphs at the end of the determination:

"58. Both parties before us confirmed that there were no additional facts or evidence that we should take into account in making our decision on this appeal. The appellant is now aged about 22. He lived in Turkey, the country of which he is a national, until he was over 18 years old. He then came to the United Kingdom. He has been here only two and a half years, and has had no legal immigration status here. Other than his sister and her husband, the majority of his family, including in particular his parents, remain in Turkey. As we have noted, the sentencing Judge took the view that his offences were partly prompted by isolation from his family in Turkey, although we are of course unable to say whether that was part of the mitigation advanced on his behalf. He has entered into a business partnership with his brother-in-law here although there is no reason to suppose that he is entitled to engage in business or self-employment or to work whilst he is here.

59. So far as his rights under Article 8 of the European Convention on Human Rights are concerned, there will be some interference with his private and family life if he is deported to Turkey, but the interference will be minimal. He will lose the close contact with his sister and brother-in-law, but will receive instead close contact with the other members of his family. He will not be working here, but he will be able to work there, with no doubts as to the legality of so doing, in Turkey. There is no reason to suppose that he cannot maintain his private and family life in Turkey. He has a criminal conviction, but even apart from that it does not appear to us that there is anything in his case showing that he has a right to remain in the United Kingdom despite the provisions of the Immigration rules. He is therefore not a person whose deportation is inhibited by Article 8 or by paragraph 380 of the Immigration Rules.

60. Looking now at paragraph 364 as it was at the date of the decision in this case, we take into account the same factors again. We note in addition that the appellant has been recommended for deportation, having been convicted on a plea of guilty to two offences of sexual assault. Other than the suggestion that these offences should be regarded as minor and not themselves meriting deportation (a submission in flat contradiction to the view of the sentencing Judge) no substantial reason has been given why the appellant should not be deported. We are entirely unpersuaded that the Secretary of State's decision should have been exercised differently.

61. For the foregoing reasons, having found that the original Tribunal materially erred in law, we substitute a determination dismissing the appellant's appeal."

38. In my judgment, there is no error of law in that reasoning and the tribunal's decision to dismiss the appeal cannot therefore be successfully challenged in this court. For those reasons I would dismiss this appeal.

Lord Justice Tuckey:

39. I agree.

Order: Appeal dismissed