COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRINBUNAL
[AIT No. IA/10103/2006]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MAURICE KAY
LORD JUSTICE WILSON
| OH (SERBIA)
|- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Miss K Olley (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Wilson:
"… 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 1) age; 2) length of residence in the United Kingdom; 3) strength of connections with the United Kingdom; 4) personal history, including character, conduct and employment record; 5) domestic circumstances; 6) previous criminal record and the nature of any offence of which the person has been convicted; 7) compassionate circumstances; 8) any representations received on the person's behalf."
In setting out the relevant parts of the paragraph I ignore the amendments made to it with effect from 19 July 2006 because they do not apply to the decision made by the respondent in relation to the appellant prior thereto.
"24. There is no doubt that the offence for which the appellant was convicted was a very serious one and that was reflected in the sentence the judge passed on a plea of guilty of four years, firstly in youth custody and then in prison and with an extended licence for four years. The appellant pleaded guilty to wounding with intent, contrary to section 18 of the Offences against the Person Act 1861, and he had come within a few centimetres of killing his victim. However, the judge accepted that at the time he was suffering from PTSD and relied heavily upon a psychiatric report. The main issue of concern raised by the Home Office at the hearing was whether the appellant had done enough to address those concerns as the psychiatrist had indicated he must. We have set out above the salient features of those reports and our conclusion is that the appellant has addressed -- so far as he is able or is currently necessary -- the symptoms of that condition. The evidence shows that the concerns were repeated by his parole officer and that he was referred to, and did, go to the clinical psychologist on his release from prison, who found that the symptoms had subsided and were no longer a major concern. We find that there is a low risk of reoffending and it would only happen were some incident to occur which revived the feelings of trauma in him. He remains on licence. At the moment the appellant has done everything that he can to rehabilitate himself in society and to provide for his family. He has sought employment; he voluntarily worked for the church before he could get employment, and he is regarded within his home community as a stable and remorseful person. There is a very impressive wealth of support given to him by those who know him and his family, and it is impossible to ignore the strength of the local community's opinions of him.
25. We have looked at the factors set out in paragraph 364 and looked at the overall position of the appellant. He has not committed any further criminal offence since this time and has done his best to rehabilitate himself in society. We accept that the crime is a one-off offence, caused by a particular incident when his friend was beaten in front of his eyes in broad daylight, which triggered off the trauma associated with PTSD. That trauma was caused by the events he witnessed as a child growing up in Kosovo and which lead the rest of his family to be granted ILR on arrival in the UK. The appellant has done his best since then to rehabilitate himself and, on balance, we feel that the Secretary of State erred in his application of paragraph 364 and did not give proper weight to the appellant's personal, compassionate circumstances and the other relevant factors set out under the Rules. We propose to allow his appeal under the Rules."
"The respondent complains that the tribunal failed to properly consider the public policy perspective when allowing the appeal and that no reasons were given for finding that the compassionate and other factors of the appellant's case outweighed the public policy considerations. Having considered the material before me and the submissions made, I have come to the conclusion that the criticism is made out. The tribunal's conclusions are set out in just two paragraphs and it is clear from those and the rest of the determination that the balancing exercise has not been properly carried out. Although the panel did consider the risk of re-offending, there is no assessment whatsoever about other public policy considerations, and no reference was made to the guidance given in N. Although it may not have been specifically referred to at the hearing, it is a leading judgment in deportation cases and it should have been considered …
The panel's failure to conduct a full balancing exercise, taking into account the factors set out in N, is a material error of law.
The appeal is adjourned for a second stage reconsideration …"
"64…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.
65. The risk of reoffending is a factor in the balance but for very serious crimes a low risk of reoffending is not the most important public interest factor."
Judge LJ said as follows in :
"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."
(a) The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.
(b) Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.
(c) A further important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.
(d) Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case. Speaking for myself, I would not however describe the tribunal's duty in this regard as being higher than "to weigh" this feature.
"I do not, however, think that the Court of Appeal was entitled to attribute to this experienced and well-qualified tribunal what would, if made, have been an egregious and inexplicable error."
Lord Justice Maurice Kay:
Lord Justice Pill:
"did not give proper weight to the appellant's personal compassionate circumstances and the other relevant factors set out under the rules."
"In all the circumstances his [the appellant's] removal to Kosovo would not be disproportionate."
"The risk of reoffending is a factor in the balance but for very serious crimes a low risk of reoffending is not the most important public interest factor. In my view the adjudicator's decision was overinfluenced in the present case by his assessment of the risk of reoffending to the exclusion or near exclusion of the other more weighty public interest considerations characterised by the seriousness of the appellant's offences. This was an unbalanced decision and one which in my view was plainly wrong. There are, it is true, references to the offences and their seriousness but these are in the main incidental or part of the narrative. I consider that a proper reading of the determination as a whole does not support the submission that the adjudicator took properly into account the public interest considerations. If he had it is in my view plain that he would not have reversed the Secretary of State's decision as to deportation."
"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."
Order: Appeal dismissed