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/04660/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th May 2009

Lord Justice Pill:

1. This is an appeal by the Secretary of State for the Home Department against a determination of the Asylum and Immigration Tribunal ("the tribunal") promulgated on 19 August 2008.
2. The tribunal allowed an appeal by KD ("the respondent") from a decision of the Secretary of State on 15 March 2007 to make a deportation order against him. The Secretary of State's decision letter referred to proceedings on 11 September 2006 at Knightsbridge Crown Court:

"…you were convicted of Violent Crime (inc ABH/GBH), Motoring Offence. In view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999."

3. By letter dated 12 March 2007 the Home Office replied to representations made on behalf of the respondent. It appears from the decision of the tribunal that there is a later letter but that is not available to the court, and we understand it deals primarily with an issue not now before us.
4. In the 12 March 2007 letter the Home Office stated:

"On 11 September 2006, you were convicted at Knightsbridge Crown Court for Violent Crime and sentenced to 1 year and four months imprisonment. You did not appeal against sentence or conviction.

The Secretary of State regards as particularly serious those offences involving violence, sex, arson and drugs. Also taken into account is the sentencing Court's view of the seriousness of the offence, as reflected in the sentence imposed, the result of any appeal upon that sentence, as well as the effect of that type of crime on the wider community. The type of offence is an important consideration, together with the need to protect the public from serious crime and its effects. In addition to these factors the circumstances of the particular offence(s) are looked at."

Later in the letter it is concluded that:

"…In light of the seriousness of your criminal offence your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals."

5. It is not clear what information was before the Secretary of State when that decision was taken, particularly as to the "circumstances of the particular offences". I mention that now because clearly when making such a decision the Secretary of State should consider carefully the circumstances of the offences. It does not appear that any fuller information was placed before the tribunal. The tribunal had and cited a part of the sentencing remarks, but not that part which deals with the circumstances of the offence. There are hints about it, but no description of what actually happened. I would express the hope that in future cases, before decisions are taken and before cases are presented to tribunals, fuller information will be available, first to the decision maker, and later, if necessary, to the tribunal.
6. The respondent is 21 years old and a national of Ivory Coast. He arrived in the United Kingdom with his mother when he was five years old. In December 2000 he was granted indefinite leave to remain in line with his mother. He has been educated in the United Kingdom. When considering the Article 8 claim, the tribunal stated at paragraph 60:

"We consider the following: the Appellant [the present respondent] has been in the U.K. lawfully for approximately 15 years, the vast majority of his formative years. He has attended school and some further education here without difficulty. He is suffering from a very serious mental illness for which he is receiving treatment and a major input of support. He was convicted of driving offences for which he is now being deported; (it is noted he has some criminal record apart from those offences, they do not relate to what may be considered 'such serious' offences. It may be said that some of that criminal activity is due to the state of his mental health."

Later in the paragraph:

"Were the Appellant to be removed we consider there would be interference with his private life and Article 8 is engaged. In deciding whether the interference is justified, is proportional to the aims to be achieved in maintaining a fair and firm immigration policy, we have taken into account all of the Appellant's circumstances; we do not conclude that it could be reasonably expected that he could enjoy his private life elsewhere, i.e. back in the Ivory Coast. He has no family there save an elderly grandmother -- he would not be able to communicate with her as he does not know her language, nor her his. He has no one else to whom he can turn for the support it is abundantly clear he needs in enabling him to live his life and maintain his physical and moral integrity. We conclude he succeeds in his Article 8 claim."

7. When considering the position under paragraph 364 of the Immigration Rules, not material to our present concerns, the tribunal stated:

"…we also note that some of those offences are in connection with driving activities -- that is not to say we regard these as frivolous, we do not but we conclude that they must be carefully weighed in the balance and not regarded as being so grave as to distort the 'picture' we view."

8. The tribunal rejected a claim under Article 3 of the Convention that clearly took up a considerable time during the tribunal's deliberations. There was evidence from Dr Bose, a community forensic consultant psychiatrist, of the serious mental health problems which the respondent has suffered. Those problems are no more than peripheral to the present issue.
9. Permission to appeal has been granted on a single ground only, as expressed by Sedley LJ in writing, and that relates to paragraph 60 of the decision, material parts of which I have cited. The question has arisen as to whether that entitles the Secretary of State to rely on the more general issue to which I will refer as well as a textual analysis of paragraph 60 and the approach there shown to the criminal offences. In my judgment Sedley LJ when granting leave on the narrower ground would have had regard to the authorities to which it is necessary to refer. He had the skeleton argument of the Secretary of State which clearly referred to the more general point as to whether the correct test had been applied by the tribunal when considering the relevance of the criminal offences. In my judgment the Secretary of State should be allowed to argue the point in that broader way. Sedley LJ refused permission to appeal on other and unconnected grounds.
10. Whether one puts it in the narrow or broader form, the single ground of appeal is whether, in striking the Article 8 balance, and considering rule 364 to which I need make no further reference, the tribunal has erred in its approach to the respondent's criminal record. As will have appeared, on 1 November 2007 he was sentenced to a total of 16 months' imprisonment and disqualified from driving for three years for offences of assault occasioning actually bodily harm, dangerous driving and driving without insurance. Noting he was disqualified from driving for three years, the tribunal set out a part of the sentencing judge's remarks.
11. The judge stated that there were "a number of serious aspects to the case which aggravate the offences". The judge referred to the respondent's previous convictions. It is stated that the offence of assault had been brought on the basis of "reckless behaviour", but noted that the respondent's acts had "a significant and lasting effect" on the female victim. The judge stated that he could not avoid a custodial sentence if he was fully to discharge his responsibility "sufficiently to punish you and effectively to deter you where sentences in the past have failed". I have already referred to the lack of factual information as to the nature of the driving and as to what constituted the assault.
12. I note that the sentences were imposed consecutively which normally indicates that, even if they occurred on the same occasion, separate conduct was involved. The tribunal set out the previous convictions of the respondent.

6^th September 2002 -- robbery which took place on 18^th December 2001, the sentence was a supervision order of 18 months [the respondent was then at the time of the offence 14 years of age].

25^th September 2003 -- the Appellant was convicted of using a license while uninsured and driving or otherwise in accordance with the license and taking a motor vehicle without consent. The sentence was 15 hours community punishment order and disqualified [from] driving for three months.

22^nd October 2003 -- the Appellant was convicted of being in possession of a Class B controlled drug, cannabis, and failing to surrender for bail, he was fined £75 for possession offence and £50 for the bail offence.

5^th February 2004 -- the Appellant was convicted of theft for which a reparation order was made against him. He was also convicted of being carried in a motor vehicle taken without consent.

1^st July 2004 -- the Appellant was sentenced for receiving stolen goods and attempted theft from a motor car for which he was subjected to a curfew order of three months with electronic tagging.

28^th January 2005 -- the Appellant was convicted for pursuing a course of conduct which amounted to harassment, using threatening, abusive and insulting words or behaviour with intent to cause fear or provocation of violence and pursuing a course of conduct which amounted to harassment. A hospital order was made against the Appellant, he was to be held in hospital for 28 days under Section 37 of the Mental Health Act 1983.

On 22^nd June 2006 -- the Appellant was convicted of an offence of having committed a theft, he was sentenced to a community order requiring supervision for 24 months.

The index offence is then set out, and I need not repeat the particulars.

13. I add that Ms Norman, who appeared before the tribunal for the respondent and instructs Mr Canter who appears for him today, did give some further information to the tribunal about the offence. I have full confidence that the information was accurate, but it was not referred to by the tribunal and does not take the matter any further.
14. I have cited the references made by the tribunal to the criminal conduct. There is a further reference at paragraph 56, when the tribunal referred to the guilty plea, to the index offences and also noted that:

"The photographs had been seen and the injuries described [that is, to the victim] as 'very nasty'."

The tribunal had also clearly considered the impact of the offence on the victim.

15. There were undoubtedly in this case substantial factors supporting an Article 8 claim, the main one being that the respondent has resided in the United Kingdom since he was five years old, that is, for the last 16 years. Mr Canter has referred to the decision of the Grand Chamber of the European Court of Human Rights in Maslov v Austria [2008] ECHR 546:

"74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55) including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, paragraph § 58 in fine)."

"75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so when the person concerned committed the offences underlying the expulsion measure as a juvenile."

16. Mr Patel for the Secretary of State submits, first, that the tribunal had not fully or accurately appreciated and have not understood the criminal offences which the respondent had committed and the seriousness of them. His second submission is that they had applied the wrong test in that they had not had regard to the Secretary of State's policy on those who have committed crime and have no right to reside, a matter which deserves weighty consideration. There has been insufficient regard to the seriousness of the offences but, and this is the second point, there has been no appreciation of or reference to other aspects of the Secretary of State's policy in relation to criminal offences.
17. Mr Patel relies on the decision of this court in N (Kenya) v SSHD [2004] EWCA Civ 1094. In that case the applicant had been sentenced to 11 years' imprisonment for abduction, threats to kill, offences of rape and an offence of false imprisonment. May LJ stated at paragraph 67:

"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."

Concurring, Judge LJ stated:

"The Secretary of State has a primary responsibility for this system … 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. "

At paragraph 94 Judge LJ, referring to the facts of that case, stated:

"When set against the public interest and the specific requirement that the nature of the offences committed by the appellant should be taken into account, 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."

18. Mr Patel also relies on a summary of the principles which in Wilson LJ's view emerge from the earlier cases. In OH (Serbia) v The Secretary of State [2008] EWCA Civ 694, Wilson LJ stated:

"15. From the above passages in N (Kenya) I collect the following propositions: 

(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."

19. In OH (Serbia) the offence involved was under Section 18 of the Offences against a Person Act 1861, which involves an intention to cause really serious bodily harm. The sentence was one of four years' imprisonment. In a concurring judgment I stated at paragraph 30:

"Expertise in that field is with the Secretary of State and with the members of the judiciary hearing criminal cases."

20. The tribunal is required to take proper account of the Secretary of State's public interest view and the views expressed by the sentencing judge or judges. I see dangers in the tribunal attempting, under Article 8 or when applying paragraph 364, to reassess the gravity of criminal offending and what has caused that offending when views have been expressed by the sentencing judge and by the Secretary of State.
21. In AC (Turkey) [2009] EWCA Civ 377, this court, Laws LJ presiding, considered the tribunal's reason and concluded that the tribunal had acknowledged the pressure of the Secretary of State's policy in terms of society's revulsion at such crimes. Mr Patel makes the point that the tribunal decision in that case included full references to the decision of N (Kenya). There are no such references by the tribunal in the present case. Laws LJ, with whom Smith LJ and Hooper LJ agreed, found that the absence of any "express statement of the weight to be given to the policy" was not in those circumstances fatal to the tribunal's decision. The applicant in that case had been sentenced to ten years' imprisonment on a charge of causing grievous bodily harm with intent, and the sentencing judge had made a recommendation for deportation.
22. I accept Mr Patel's submission that the tribunal, in its commentary upon them, has played down the seriousness of the offences committed by the respondent, and indeed is somewhat dismissive of them. Further, the tribunal has not stated in terms that it has had regard to the Secretary of State's policy and the importance of that factor as expressed in N (Kenya) and OH (Serbia). I also accept that the respondent has a bad criminal record, especially for a young man of 21. That record includes not only the index offence but a variety of other offending for which sentences, clearly attempting to assist him in some cases, had been imposed.
23. However, the strengths of the points in the respondent's favour on an Article 8 balance, and the tribunal referred to them, were very substantial. Secondly, the tribunal was, certainly by way of comparison with the other cases to which I have referred, entitled to conclude that these offences came into a less serious category, and I have referred to the sentences which had been imposed in the cases where the Secretary of State's policy has been under consideration.
24. I am prepared to hold in this case on the particular facts that the tribunal did strike a proper balance and that the absence of specific reference to the Secretary of State's policy is not fatal to upholding their conclusion. They did make comments in some detail about the offences. Those comments do not in themselves so misrepresent the position as to entitle the Secretary of State to succeed. They were comments within the range of comments a tribunal was entitled to make. I am prepared to hold that they did have regard, on the basis of the material known to be before them, to the importance of policy considerations and the importance of the position of the Secretary of State as the constitutionally responsible person. Unlike OH (Serbia), this is not a case where the tribunal has ignored the remarks of the sentencing judge or made an appraisal of the seriousness of the case which is at odds with that made by the judge.
25. I have to add that the Secretary of State's own analysis in the decision letter is brief to the point almost of being meaningless, with respect, and it was not apparently thought right, either in the decision making process, or in submissions to the tribunal, to make available further particulars of the offences and the seriousness of them as so found by the Secretary of State. I accept that the point on N (Kenya) was taken on behalf of the Secretary of State before the tribunal.
26. In those circumstances I would dismiss this appeal. However, I would underline the significance of the decisions of this court in N (Kenya) and OH (Serbia) and the statements of principle contained in those cases. Tribunals should have regard to them, as should the Secretary of State when decisions are made.

Lord Justice Rix:

27. I agree. In a nutshell, the index offences concerned, even when set against the disagreeable background of KD's record of offending, beginning at the age of 14, were not of such seriousness as to render the decision in this case flawed by the tribunal's failure to make explicit reference in its paragraph 60 balancing of proportionality to the full gamut of the public interest involved as set out, for instance, in OH (Serbia) by Wilson LJ at paragraph 15 of his judgment. On the other side were very substantial Article 8 considerations in favour of KD, who had spent nearly the whole of his life in this country. I would therefore dismiss this appeal. In other cases, however, it may very well be of particular importance that more detailed consideration be given to the Secretary of State's role in upholding the public interest in deterring and recognising the public revulsion of serious crime.

Lord Justice Richards:

28. I also agree. As to the first and rather narrow point raised on behalf of the Secretary of State, the fact is that we do not know the detailed circumstances of the index offences and I am not persuaded that the reference to "driving offences" in paragraph 60 was inappropriate as a summary description of all the index offences including the offence of assault occasioning actual bodily harm, but in any event I am satisfied (inaudible) as a whole. The tribunal had in mind all the offences, including the assault occasioning actual bodily harm, when engaging in the proportionality assessment under Article 8. On the second wider issue I have nothing to add to the observations made of my Lords.

Order: Appeal dismissed