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: IA/02915/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		17th July 2008

Lord Justice Tuckey:

1. This is, in form, an appeal by IM from a decision of the AIT which on a reconsideration dismissed his appeal from the Secretary of State's decision to deport him. In substance, however, it is an appeal from the AIT's decision at the first-stage reconsideration that the original tribunal, which had allowed the appellant's appeal, had made a material error of law. If that decision was wrong, the AIT had no jurisdiction to proceed to the second-stage reconsideration which resulted in the decision under appeal.
2. The appellant is a citizen of Zambia who is now aged 32. He arrived in the United Kingdom with his mother when he was ten and has lived here ever since. His mother returned to Zambia in 1989, after which the appellant lived with and was brought up by his aunt. He was granted indefinite leave to remain in 2002. However, on 20 February 2006 he pleaded guilty to the statutory rape of a 12-year-old girl contrary to section 5 of the Sexual Offences Act 2003 and was sentenced to two years' imprisonment. The Secretary of State's decision to deport him followed. The appellant's appeal from that decision, based on Article 8 and the amended paragraph 364 of the Immigration Rules, was first heard in March 2007.
3. At that time, the AIT's jurisprudence indicated that the tribunal should first consider the position under the Rules and then, if that case failed, go on to consider the position under Article 8: see CM v SSHD(Jamaica) (Deportation-Article 8) [2005] UKAIT 00103 at paragraph 38. This explains why, as I shall explain, the original Tribunal considered the claim under paragraph 364 first and then the claim under Article 8. However, to complete the picture so far as the jurisprudence is concerned, in EO v SSHD (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062, notified on 27 July 2007, the tribunal said that this approach was wrong because paragraph 364 was subject to paragraph 380 of the Rules, which provides that a deportation order will not be made against any person if his removal would be contrary to the United Kingdom's obligation under the Human Rights Convention. So the correct approach was to consider the Article 8 claim first and then, if that failed, the claim under the Rules.
4. Paragraph 364, so far as relevant, says that:

"…while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport."

5. The original tribunal set this rule out at the beginning of its reasons in paragraph 7. This was followed by a summary of the parties' cases and submissions. Under the heading "Consideration of the Evidence and Findings of Fact", the Tribunal started at paragraph 33 by saying:

"We have taken account of paragraph 364 which establishes that where a person is liable to deportation the presumption shall be that the public interest requires deportation and while the Secretary of State is required to consider all relevant factors it will only be in exceptional circumstances that the public interest will be outweighed…"

6. It then went on to consider the nature and seriousness of the appellant's offence by referring to the judge's sentencing remarks. The appellant had met the girl through a TV dating channel. After an exchange of explicit message he arranged to meet her and sexual intercourse took place at her home after she had expressed some reluctance. She had told him that she was 24 but the judge said it must have been obvious to him that she was a very young teenager. The police said that when made up she looked about 14.
7. The tribunal concluded at paragraph 39:

"…from the judge's sentencing remarks and the reports in the bundle it is clear that this is a serious offence. And while there is a low risk of reconviction the risks to children and the public remain high and medium. In considering this offence we had regard to the principle that where a person who is not a British citizen commits a very serious crime the public interest side of the balance will include a need to deter others and to express society's condemnation of the crimes. Offences which are usually regarded as being in this category are those involving violence, sex, arson and drugs. Such offences are potentially extremely harmful to not only the individual victim but to the wider society. We are satisfied therefore that the seriousness and nature of the offence weighs significantly against the Appellant in considering the public interest side of the balance."

Then they start paragraph 40 by saying:

"We have then considered the appellant's circumstances and whether they are exceptional as set out in paragraph 364."

8. In the following paragraphs the tribunal proceeded to consider those circumstances which included the fact that the appellant had spent almost two-thirds of his life in the United Kingdom. His later formative years from the age of ten had been spent in United Kingdom schools, colleges and employment. He had not been back to Zambia, where he had no family or connections apart from his mother whom he had not seen since he was ten. He only spoke English. After further discussion and reference to the case of Huang v SSHD [2007] UKHL 11 the tribunal said at paragraph 51:

"Taking account of this case law we have arrived at the following conclusions in relation to the Appellant's circumstances in the United Kingdom and whether these can meet the exceptional circumstances referred to in paragraph 364."

And went on to conclude at paragraph 56:

"Therefore while we acknowledge the serious nature of the offence taking into account the other circumstance pertinent in this appeal we are satisfied that they just outweigh the presumption in favour of deportation."

9. The tribunal's conclusion on Article 8 comes in the following paragraph, at the very end of the reasons, where it says:

"…given his substantial period of residence in the United Kingdom, the private life he has established in terms of work, education and his aunt and her children and that he has very little connection with Zambia we are satisfied that his removal would be a disproportionate interference with the life he has established here in the past 19 years."

10. The Secretary of State appealed this decision. Senior Immigration Judge Lane granted leave to apply for reconsideration by saying it was highly arguable that the Tribunal had acted perversely in deciding that this 30-year old man's private life and family with his aunt were sufficiently exceptional in terms of paragraph 364. The first stage reconsideration came before Senior Immigration Judge Latter on 1 August 2007. His decision was that the original tribunal decision contained material errors of law: firstly, because the Tribunal had considered the issues the wrong way round and that had meant that the Article 8 claim had only received minimal consideration and the issue of proportionality had not been correctly considered. But more importantly he said:

"Although the Tribunal referred in its determination to the issue of whether the appellant could meet the exceptional circumstances referred to in paragraph 364 I am not satisfied that the Tribunal in fact applied the test that it would only be in exceptional circumstances that the public interest in deportation would be outweighed."

He then referred to paragraph 56 of the tribunal's decision, which I have quoted, and ordered reconsideration, although it was on these grounds and not specifically on the grounds of perversity. He ordered a full second-stage reconsideration which came before the tribunal later and is, as I have said, the decision which is under appeal to this court.

11. Ground 1 of the appellant's notice of appeal contends that there was no material error of law in the original tribunal's decision. In granting permission to appeal on this ground Richards LJ said it was arguable that the panel directed itself correctly by reference to paragraph 364, including the exceptional circumstances point and Article 8 and reached in each case a conclusion that was adequately reasoned and reasonably open on the facts and that any error of law in dealing with Article 8 at the end rather than first was not a material error.
12. Miss Samantha Broadfoot, for the Secretary of State, has sought to defend Senior Immigration Judge Latter's decision that there were material errors of law in the original tribunal's decision. She says that approaching the issues the wrong way round and the failure to deal fully with Article 8 were two material errors of law. If Article 8 had been considered first and the question of proportionality had been properly considered the tribunal, she says, might well have concluded that the appellant's deportation would not be a breach of Article 8 as the second tribunal had subsequently concluded. If it had rejected the Article 8 claim, the original tribunal might have reached a different conclusion on paragraph 364.
13. I am afraid I do not accept these submissions. There is nothing in the Tribunal's decision to indicate that its decision under paragraph 364 was in any way affected or infected by its later Article 8 decision. That is demonstrated by the very fact that it was not dealt with until after the appellant's case under paragraph 364 had been determined and then only in a cursory way. For the purposes of argument I would be prepared to accept that there may have been an error of law in the way the tribunal dealt with the Article 8 claim, but it does not seem to me that the error was material. I cannot see -- at least I cannot see in the context of the decision in this case -- that the fact that the Tribunal should have proceeded to its paragraph 364 decision in the knowledge that the Article 8 claim had failed is in any sense determinative. The issue of proportionality will have traversed very much the same ground as the rather wider considerations which arise under paragraph 364 but the fact that the Article 8 claim may have failed, may have just failed, or may not even have been proceeded with at all, has any bearing on the claim under paragraph 364, provided of course that the exceptionality test prescribed by paragraph 364 is properly applied when the claim under that paragraph is being considered.
14. So the original tribunal's decision must stand unless there was an error of law in its paragraph 364 determination. Here Miss Broadfoot submitted (although this submission somewhat withered on the vine) that Senior Immigration Judge Latter correctly identified the error of law as the failure to apply the exceptionality test prescribed by paragraph 364. She accepted that the Tribunal correctly directed itself, but contended that when it came to the point at paragraph 56 of its decision it failed to follow that direction. Use of the words "just outweigh" show, she submitted, that it simply struck a balance between the factors for and against deportation and lost sight of the fact that factors against deportation had to be exceptional before the appellant could succeed.
15. I have already set out the various references to the correct test which the Tribunal made in the course of its reasons. After setting out the rule in full at paragraph 7, it starts the section in which it considers the evidence and makes its findings of fact at paragraph 33 with a further reference for the need to find exceptional circumstances. In the course of that consideration, in both paragraphs 40 and 51 it refers again to the need for the appellant to show exceptional circumstances. So I am quite unable to accept that the tribunal had lost sight of the correct test by paragraph 56, where it expresses its conclusion. Use of the word "outweigh" in that paragraph is perhaps unfortunate taken out of context, but in context, looking at its reasoning as a whole, it is clear that what the Tribunal is intending to say is that it was just satisfied that the appellant had shown exceptional circumstances.
16. So for those reasons I think Senior Immigration Judge Latter was wrong to identify this as an error of law. The Tribunal directed itself as to, and applied, the right test. Its decision was one which was open to it on the facts although other decision makers could and, as we know, in fact did reach a different conclusion. But as a decision which was not infected by a material error of law, it must stand. There was no jurisdiction to order a reconsideration.
17. For those reasons I would allow this appeal, set aside the order made by the Tribunal on the second stage reconsideration and reinstate the original Tribunal's decision.

Lord Justice Keene:

18. I agree. As a matter of form it is more appropriate in cases such as this for the immigration judge to deal with the Article 8 claim before turning to paragraph 364 of the Immigration Rules because of the way in which that paragraph is worded. But when one looks not at form but at substance in the present case, one finds that the original immigration judge did apply his mind to the requirements of paragraph 364 and, in my judgment, did so without making any error of law. He asked himself whether there existed here exceptional circumstances and, while his answer to that question may seem surprising to some, it was not perverse in the sense of being an answer which was not open to him. I too would allow this appeal.

Lord Justice Buxton:

19. I agree with both judgments. The appeal is therefore allowed in the terms indicated by my Lord.

Order: Appeal allowed