England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: DA/00114/2009]

		Royal Courts of Justice Strand, London, WC2A 2LL
		23rd June 2010

See also: [2013] UKAITUR DA001142009

Lord Justice Sullivan:

1. This is the Secretary of State's appeal against the determination promulgated on 19 October 2009 of Immigration Judge Lobo allowing on reconsideration SB's appeal against the Secretary of State's decision to make a deportation order against him.
2. SB is a Jamaican citizen who was born on 29 November 1978. He arrived in the United Kingdom on 17 October 1999 as a visitor with leave to enter for a month. Thereafter he over-stayed. When he was arrested in 2001 he claimed asylum. He married a British citizen, Anne Marie McNeil on 29 May 2001. He withdrew his asylum claim but was subsequently given indefinite leave to remain as a foreign spouse on 18 September 2004.
3. For present purposes the important event in the chronology is SB's conviction on 16 November 2007 of possession of cocaine with intent to supply, for which he was sentenced to 40 months' imprisonment.
4. Under the UK Borders Act 2007, the Secretary of State was required to make a deportation order against him unless his removal would breach his rights under either the European Convention on Human Rights or the Refugee Convention. The latter is not relevant for present purposes.
5. SB appealed against the Secretary of State's decision to make a deportation order against him. His appeal was dismissed by Immigration Judge Mitchell. Reconsideration was ordered.
6. Senior Immigration Judge Mackie ruled that there had been a material error of law in the determination dismissing SB's appeal because there had been a misunderstanding by the Tribunal of the evidence as to his family arrangements.
7. The second stage reconsideration came before Immigration Judge Lobo at a hearing on 5 October 2009. The only ground of appeal against the decision to make the deportation order was that the order would be in breach of SB's right to respect for his family life under Article 8 of the European Convention on Human Rights. In reality, the only issue under Article 8 was whether deportation would result in a disproportionate interference under Article 8.2.
8. When deciding whether deportation would be disproportionate for the purposes of Article 8.2, Immigration Judge Lobo had to carry out a balancing exercise weighing all the factors, both those for and those against deportation. At paragraph 28 of the determination, the Immigration Judge said this about the offence of which SB had been convicted:

"Although the offence of supplying drugs is serious, it engages society's displeasure rather than society's revulsion."

9. The weight to be attributed to the various factors for and against deportation was of course a matter for Immigration Judge Lobo, but Mr Thomann submits on behalf of the Secretary of State that the Immigration Judge's approach in paragraph 28 of the determination to the significance of the offence for which the appellant had been convicted was perverse. The offence of supplying Class A drugs such as cocaine is not one of those offences which merely engages society's displeasure. That might be an appropriate description of, for example, some motoring offences. I realise that the offence committed by SB was possession with intent to supply rather than actual supply, but the offence of supplying Class A drugs is undoubtedly one of those offences which does engage society's revulsion. Those who supply Class A drugs knowingly wreck people's lives and they do so for financial gain.
10. Immigration Judge Lobo's assessment of society's reaction to such offences is fairly described as bizarre. It is possible that his observation was based on a misunderstanding of paragraph 15 of Wilson LJ's judgment in OH (Serbia) v SSHD [2008] EWCA Civ 694, to which he had been referred (see paragraph 16 of the determination).
11. In paragraph 15 of his judgment in OH (Serbia), Wilson LJ said:

"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."

12. Maurice Kay LJ and Pill LJ agreed with the judgment of Wilson LJ. When paragraph 15 of OH (Serbia) is read as a whole, it is plain the Court of Appeal in that case was making the point that the commission of serious crimes causes revulsion in society, hence the need to build public confidence in the treatment of foreign nationals who have committed serious crimes. There can be no doubt that SB's offence was a serious crime. Indeed, the Immigration Judge described it as a "serious offence" in paragraph 25 of the determination. However, the Immigration Judge appears to have misinterpreted paragraph 15(c) in the judgment in OH (Serbia) and taken it as meaning that only those crimes which cause society's revulsion are to be considered as sufficiently serious to warrant deportation. In my judgment that turns the proposition on to its head. Whether or not this is the explanation for paragraph 28 of the determination, Immigration Judge Lobo's conclusion that SB's offence was one which merely engaged society's displeasure rather than its revulsion was not one which was rationally open to him.
13. Since the weight to be attributed to the seriousness of the offence was an essential part of the balancing exercise for the purposes of Article 8, it follows that this error of law was material and the Secretary of State's appeal must be allowed on this ground.
14. In so concluding, I would emphasise that this judgment is not to be treated as authority for the proposition that it is not the task of immigration judges to carefully consider the seriousness of the individual offence. While certain offences as a category may well be serious offences, it is of course necessary to look at the gravity of the particular offence within that category.
15. For the sake of completeness, I should mention that the Secretary of State challenged the determination on two further grounds. Ground two alleged that the Immigration Judge had failed to have regard to a material consideration, namely the Secretary of State's assessment of the public interest in deporting a particular foreign criminal. In this context Mr Thomann referred to paragraph 15(d) of OH (Serbia) (see above) and submitted that the principles set out therein continued to be relevant even though deportation under the 2007 Act is now automatic in cases where foreign criminals are sentenced to at least twelve months' imprisonment. Parliament has deemed that their removal is conducive to the public good. That automatic deportation is of course subject to the specified exceptions that deportation will not infringe the individual's rights under either the Refugee Convention or the European Convention on Human Rights. The matter is no longer one for the Secretary of State's discretion.
16. Since this appeal has to be allowed on ground one, I would prefer to leave this issue for determination in a case where the answer will make a real difference to the outcome of the appeal.
17. Ground three contended that the Immigration Judge had given inadequate reasons for his conclusion that it was not reasonable for SB's wife and children to have to relocate to Jamaica in order to preserve their family life together (see paragraph 30 of the determination). Since the appeal has to be allowed in any event on ground one, I would simply say in respect of this ground that this conclusion did not necessarily follow from the Immigration Judge's only relevant and somewhat sparse findings of fact in paragraphs 21(f) and 27 of the determination that SB's wife and children were all British citizens who had lived all their lives in the United Kingdom and that his daughters would find it "extremely difficult" if they had to leave the United Kingdom and live in Jamaica. No doubt they would, but that is not the test. Mr Thomann fairly conceded that if the facts were examined in considerably more detail than is set out in Immigration Judge Lobo's determination, it was possible that an immigration judge could conclude that it would indeed be unreasonable for SB's wife and children to have to relocate to Jamaica in order to preserve their family life.
18. However, it seems to me that the proper course is to quash Immigration Judge Lobo's determination and to remit SB's Article 8 appeal for reconsideration in its entirety to the Upper Tribunal, which will be able to weigh the seriousness of the particular offence committed by SB against the extent of the interference with his family life under Article 8.

Lord Justice Etherton:

19. I agree. I suspect that Immigration Judge Lobo's comment in paragraph 28 of his judgment was intended to make the point that even in the case of serious offences, of which this was one, there are gradations of seriousness. Plainly that is a matter which is to be taken into account in carrying out the balancing exercise for the purposes of Article 8, but that is not what he has said.
20. The only other observation that I would make is that, as Mr Colin Thomann, counsel for the Secretary of State, in his extremely helpful submissions has acknowledged, it is still possible that, on remission to the Upper Tribunal, the Tribunal, upon full and proper examination of the facts and carrying out a proper analysis under Article 8 of the Convention, may still reach a legitimate conclusion that deportation is precluded by Article 8.

Lord Justice Longmore:

21. I agree with both judgments and there is nothing that I can usefully add.

Order: Appeal allowed