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/11763/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		3rd February 2009

Lord Justice Richards:

1. The applicant is a national of Jamaica who came to the United Kingdom in 1970 at the age of eight. Since 1979 he has had a long record of criminal offending, though with a substantial gap in terms of convictions between 1990 and 2005. In July 2005, however, he was convicted of possession of class A drugs with intent to supply and was sentenced to seven years' imprisonment on the basis that he was a commercial dealer.
2. The Secretary of State subsequently decided that he should be deported from the United Kingdom on the ground that his deportation was conducive to the public good. He appealed to the Asylum and Immigration Tribunal, but in a decision dated 28 August 2008, after a full reconsideration, the Tribunal dismissed his appeal. Permission to appeal to this court was refused by the Tribunal itself and by Sir Richard Buxton on the papers. The application has been renewed orally before me on the applicant's behalf by Mr Harris, in a set of commendably clear and succinct submissions.
3. The only part of the Tribunal's decision that is challenged is its finding that to return the applicant to Jamaica would not be in breach of Article 8 of the European Convention on Human Rights.
4. The first ground of appeal concerns the Tribunal's legal directions. I will deal with it first since it falls logically to be considered at the outset, even though in his oral submissions Mr Harris dealt with it as a secondary argument. Between paragraphs 30 and 38 of its decision the Tribunal referred to relevant authorities in a way to which no objection is or could be taken. That included the quotation of the key passage from Lord Bingham's speech in Huang v SSHD [2007] UKHL 11, reference to the step by step approach set out in R ...Razgar) v SSHD [2004] UKHL 27 and reference to the judgment of the Court of Appeal in AG (Eritrea) v SSHD [2007] EWCA Civ 801 in which the effect of Huang was examined. The Tribunal then considered the facts. In paragraph 45 it accepted that the applicant had a family and private life in the United Kingdom. In paragraph 46 it found that his removal to Jamaica would constitute an interference with his family life, but the interference was in accordance with the law and pursued a legitimate aim, so that the Tribunal could move to consider proportionality. It then said this in the last sentence of paragraph 46:

"Although the exceptionality test is no longer the law of the United Kingdom we find there has to be something unusual about a particular case to depart from the ordinary principles of immigration control."

5. The Tribunal went on in the following paragraphs to examine the proportionality issue.
6. The submission made is that in the sentence that I have quoted the Tribunal misdirected itself by imposing an extra hurdle similar to the now disapproved test of exceptionality and inconsistent with the authorities to which the Tribunal had previously made extensive reference.
7. In rejecting that ground Sir Richard Buxton said this:

"What the AIT said in its §46, after reviewing all the recent authority in this court, was a sensible recension of the practical position as produced by Huang. And even if the verbal formulation were to be held inaccurate, there is no prospect of any test of a man with a record in the terms characterised by the AIT in its §47, and who has been assessed as presenting some risk of further violent or sexual reoffending (AIT, §43) being seen as a legitimate candidate for an exemption from the imperatives of immigration control."

Counsel takes issue with those reasons, making the submission that the last sentence of paragraph 46 reads most simply as imposing an additional test and not merely as a general observation about the effect of Article 8 in practice. In his written submissions counsel also takes issue with Sir Richard Buxton's observations about the substance of the case.

8. For my part, however, I agree with Sir Richard Buxton. It seems to me that the Tribunal, which had gone to great pains to spell out the correct test for the application of Article 8, was doing no more in paragraph 46 than making the undoubtedly correct point that in practice there does have to be something unusual about a case if an applicant is to succeed in showing that removal would be disproportionate. In any event, I also agree with what Sir Richard Buxton said about the substance of the case. Of course, a significant criminal record and risk of re-offending are not the end of the matter. They were not the only matters taken into account. The tribunal also took into consideration his family links in this country and his lack of relatives in Jamaica, and also the substantial period of his life he had spent in this country. I see no realistic prospect of a family life claim succeeding in this case on a proper application of the relevant principles, and even if there were an error in the Tribunal's reasoning, which in my view, there was not, it would not be a material error.
9. Those are matters which also have bearing on the remaining part of the case, raised by the other two grounds of appeal and put at the forefront of Mr Harris' submissions today. The submissions relate to the private life aspect of Article 8. It is said that the Tribunal failed to give proper consideration to the applicant's right to respect for private life, and in particular that the lack of distinct and proper assessment of the significance of his period of residence in this country was perverse. Sir Richard Buxton considered that the private life argument was not even open to the applicant, since, although the appeal was advanced pro forma on the basis of private as well as family life, it was clear that the latter predominated in the argument. He also made further observations indicating that in his view there was nothing additional in the private life claim beyond the matters considered in any event by the Tribunal.
10. I am prepared to proceed on the basis that the applicant is entitled to advance the point about private life since private life was an issue, although as it seems to me a subsidiary one, in the arguments before the Tribunal, and the Tribunal did make a finding at paragraph 45 that the applicant had a private life in the United Kingdom. It is true that the focus of the Tribunal's discussion of proportionality was on family life, which may or may not have reflected the thrust of the arguments before it, and that the Tribunal did not refer in terms to private life when expressing its conclusion that the applicant's removal would be proportionate. But it seems to me that that conclusion was plainly intended to cover private as well as family life, and I do not see any specific point arising in the context of private life which is not considered in any event by the Tribunal in the context of family life, or that could have warranted a different conclusion in relation to private life from that reached in relation to family life.
11. Thus I am not in the least persuaded by the submission that the Tribunal failed to give a proper consideration to the issue. As to the specific issue of length of residence in the United Kingdom, that was something that, from its decision as a whole, it can be seen that the Tribunal plainly had in mind.
12. I understand why counsel places the weight he does on the residence point. He says that at the date of the reconsideration the applicant had spent some 27 years in this country out of prison, having been here since childhood and having spent his formative years here. Counsel says that although the applicant was not a British citizen he was close to becoming one in a substantial sense through the length of time he had spent in this country since his childhood. There was actually a dispute before the Tribunal about the length of time he had spent in custody, but the calculation of 27 years, as I understand it, is based on the total period of 9 years in prison, which the Tribunal was prepared to accept for the purposes of its decision.
13. The arguments advanced in relation to residence are perfectly respectable arguments on the merits, though, as Sir Richard Buxton suggested, the length of residence loses much of its force when one considers the substantial time spent in prison or committing serious offences and also the fact that the applicant has a poor and unproved work record. In any event I have already indicated my own view that, looking at the overall nature of the case, I cannot see a properly directed tribunal allowing an Article 8 claim here. What is most important for present purposes, however, is that the Tribunal was clearly aware of the facts concerning residence and took them into account. Such facts were far from capable of rendering the Tribunal's decision unreasonable; nor do I accept that it was necessary for the Tribunal to provide more detailed reasoning than it did in support of its decision.
14. Accordingly I see no arguable error of law in the Tribunal's approach, and I am satisfied that an appeal would have no real prospect of success. The application must therefore be refused.

Order: Application refused