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: IA/03236/2008; AA/06800/2007]

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th March 2010

Lord Justice Laws:

1. This is the Secretary of State's appeal, with permission granted by the Asylum and Immigration Tribunal on 5 May 2009, against the determination of the tribunal promulgated on 23 February 2009, by which they allowed the respondent's appeal against the Secretary of State's refusal of 15 January 2008 to revoke the deportation order earlier made against him.
2. As will shortly become apparent, there are seven grounds of appeal, some of which in my judgment are good, some not. I shall deal with them ground by ground and, subject of course to my Lords' views of the case, we will invite counsel to make submissions as to what relief will be appropriate in the light of those findings.
3. The respondent is a national of St Lucia now aged 47. He first arrived in the United Kingdom on 28 May 1990 and was granted leave to enter as a visitor for six months. Thereafter he was granted leave to remain as a student for successive periods, finally expiring on 30 September 1999. Since that date he has remained here unlawfully. His wife joined him in the United Kingdom in 2000. On 11 February 2002, on his late plea of guilty after 15 prosecution witnesses had been called, the respondent was convicted at the Inner London Crown Court of importing class A drugs into this country and on 26 March 2002 was sentenced to seven years' imprisonment. No recommendation for deportation was made. On 8 March 2005 the Secretary of State served a notice of decision to deport on the respondent. The respondent was released from prison on 14 March 2005. A deportation order was signed and served on 9 June 2005. It was also in that year that his youngest child was born in the United Kingdom. There are two older children, respectively aged 18 and 12 at the time of the AIT's determination in February 2009.
4. No immediate attempt was made to deport the respondent. In March 2007 he applied for asylum. On 14 April 2007, however, he was notified that he was excluded from being considered for asylum by force of section 72 of the Nationality, Immigration and Asylum Act 2002 and for the purposes of Article 33.2 of the 1951 Refugee Convention as being a person presumed to have committed a particularly serious crime and to constitute a danger to the community of the United Kingdom. His asylum application was accordingly rejected on 5 June 2007.
5. Following judicial review proceedings, into whose details it is unnecessary to go, the Secretary of State issued a fresh decision dated 15 January 2008 refusing to revoke the deportation order. This attracted a statutory right of appeal (see Section 82(2)(k) of the said 2002 Act) and such an appeal was lodged. The appeal came before Immigration Judge Flynn, who on 27 August 2008 dismissed it on all of the three grounds on which it had been brought, namely asylum, humanitarian protection and human rights. On 4 November 2008 Owen J sitting in the Administrative Court ordered reconsideration and the matter ultimately came before Immigration Judge Neuberger on a second-stage reconsideration on 28 January 2009.
6. On 23 February 2009 Immigration Judge Neuberger dismissed the appeal on asylum grounds, holding at paragraph 60 that the respondent's fear on return to St Lucia was not of persecution for a Convention reason but of reprisals from violent drug dealers. However, the Immigration Judge allowed the appeal on humanitarian protection grounds, being "in no doubt whatsoever" that the respondent and his family were "most definitely at risk of revenge" at the hands of drug dealers whose livelihood he had put at risk in giving information to Scotland Yard: see paragraph 60.
7. In addition the Immigration Judge allowed the respondent's appeal on human rights grounds, that is to say Articles 2, 3 and 8 of the European Convention on Human Rights, which respectively guarantee the right to life, the right not to be tortured and the right to respect for family and private life. Immigration Judge Neuberger's decision is now the subject of the Secretary of State's appeal to this court, as I have indicated.
8. At the beginning of this hearing the Secretary of State had not been granted permission to argue his seventh ground of appeal. That was to the effect that the AIT failed to consider whether the respondent was excluded altogether from any right to relief on humanitarian protection grounds by virtue of the provisions of paragraph 339D of the Immigration Rules. Mr Canter for the respondent helpfully made it plain at the outset that he neither resisted permission being granted nor indeed the force of the point itself. I will return to it briefly at the end.
9. Miss Broadfoot's first ground on behalf of the Secretary of State is that the Immigration Judge failed to have regard to a factor material to his decision, namely that the respondent had not complied with reporting constrictions imposed upon him under the immigration legislation in February 2006. It is important to note how this ground arises. Although the Immigration Judge was, as I have said, to dismiss the appeal on asylum grounds, he held (paragraph 57) that the presumption that the Refugee Convention did not apply to the respondent arising by virtue of his criminal conviction was in fact rebutted; the ground of appeal, as expressed in counsel's skeleton argument paragraph 18, which concerned the question of whether there was a presumption arising from the respondent's conviction to the effect that he represented a danger to the community of the United Kingdom. We should make it clear we are not concerned with whether the presumption relating to the Refugee Convention was in fact rebutted because, as I have indicated, the Immigration Judge himself dismissed the appeal on its merits, so far as it was brought on asylum grounds. However, both parties accept that the issue of the respondent's non-compliance with reporting restrictions may be material to the proportionality balance to be struck under Article 8(2) of the Human Rights Convention upon consideration of the respondent's claim to remain here so as to have the required respect for his family life vindicated.
10. The respondent's documented immigration history, quoted in Miss Broadfoot's predecessor's skeleton at paragraph 20, includes this:

"On 9 June 2005 a deportation order was signed against [the respondent]. On 3 February 2006, [the respondent] was placed on weekly reporting restrictions. [The respondent] only complied with his reporting restrictions on 14 February 2006. On 28 January 2007, [the respondent] was detained under immigration powers."

11. At paragraph 63 the Immigration Judge said this:

"…he has been in this country for a considerable length of time and since his conviction, the appellant has not been in any further trouble, but on the contrary has quite clearly involved himself in helping other people in a very positive way, as set out in the letters of reference that are on the file, and he has also been actively involved with the global community to the great benefit of other residents of his location in south London."

12. My understanding of the point as to failure to report was that it was being said that that failure puts this rosy picture in part into doubt and should have affected the proportionality balance to be struck. In my judgment the Immigration Judge would, with respect, certainly have done better to mention this factor in the case, but I am by no means persuaded that he did not have it in mind and, even if he did not, the consequent error of law, failure to have regard to a material factor, cannot realistically be said to be a material error of law. The respondent had not in fact got into any further trouble since his release on 14 March 2005. He was at liberty for a considerable period of time until he was detained under Immigration Act powers in late January 2007. The positive acts to his credit are, so far as I am aware, correctly recorded by the Immigration Judge. There is in my judgment nothing in ground 1.
13. The second ground concerns the Immigration Judge's findings as to sufficiency of protection by the state authorities in St Lucia if the respondent were returned there. As I have indicated, the Immigration Judge was clear that the respondent and his family would be at risk of revenge attacks. The Immigration Judge therefore had to consider whether he and his family would be sufficiently protected by the authorities in St Lucia. This point is material to the Immigration Judge's finding (paragraph 60) of prospective violations of Articles 2 and 3 of the Human Rights Convention.
14. At paragraph 59 the Immigration Judge noted that St Lucia is a small community. The respondent's return to any part of it would become known to those interested in him. The detective sergeant to whom he had given information about drug dealers when he was in prison went to St Lucia, and the Immigration Judge held that this fact must have become known to the drug dealers. There were rumours of threats to the respondent, and, in a letter of 25 July 2007, the High Commissioner of St Lucia stated that it is quite possible that the respondent's wife would be in danger. The Immigration Judge attached "considerable weight" to that letter. The Immigration Judge accepted all this evidence of risk and at the end of paragraph 59 says this:

"I do not believe that there is a sufficiency of protection in St Lucia as the relatively small police force cannot possibly protect and guard the appellant and his family around the clock and I therefore do accept that they would be at some risk of violence against themselves if they were returned to St Lucia."

15. I should also read this passage from paragraph 60:

"His fear is from drug dealers in St Lucia and arises out of his criminal conviction in the United Kingdom and his subsequent giving of information to Scotland Yard which resulted in the visit of Detective Sergeant Titterrell to St Lucia, a visit which obviously came to the notice of drug dealers in that country and also possibly to the notice of the police authorities there. Drug dealers are known to be violent people when their trade is put at risk and I have no doubt whatsoever that the appellant and his family are most definitely at risk of revenge being taken by those whose livelihood in drug dealing has been put at risk by the appellant."

16. The Secretary of State submits in his skeleton argument (paragraph 23) that the Immigration Judge gave no reasons for concluding that the small police force could not protect the island's small population including the respondent and (paragraph 24) a requirement of protection "round the clock" applies the wrong test. There was no evidence that "round the clock protection" was required and in any event the principle of surrogate protection does not demand complete protection amounting to a guarantee: see per Lord Hope in Horvath v SSHD [2001] 1 AC 489 at 500 F-H and per Lord Clyde at 510 E-H.
17. Miss Broadfoot submitted in her address this morning that the Immigration Judge has not properly considered the sufficiency of protection issue. She cites, in addition to Horvath, R(Bagdanavicius) v SSHD [2005] 2 AC 668 paragraphs 12 and 27 as showing, within a case where the risk is of harm by non-state actors, that the individual potentially affected must prove that the state cannot or will not provide reasonable protection and the Immigration Judge in this case has not, says Miss Broadfoot, confronted that requirement.
18. It is true that paragraph 59 is shortly expressed, true also that a literal 24-hour round-the-clock guard cannot of itself be an applicable legal test but, reading paragraphs 59 and 60 together and indeed the details given in paragraphs 18 to 24 of the Home Office letter of 5 June 2007 to which Miss Broadfoot referred this morning, it is clear to my mind that the risk here must be at the top of the scale. It comes from ruthless professional criminals who will know that the respondent has informed on them or their like. In the particular circumstances, though in somewhat loose language, the Immigration Judge has made a supportable finding that the St Lucia police will simply be unable to provide real protection. For those reasons I would reject ground 2.
19. The third ground is that the AIT failed to consider various aspects of the public interest in relation to the respondent's deportation. This is only relevant to the Article 8 issues in the case. The complaint is that although the Immigration Judge had regard to the issue of risk of re-offending, he failed to consider other factors, in particular as they were enumerated by Wilson LJ in OH (Serbia) v SSHD [2008] EWCA Civ 694: the deterrence of foreign criminals, the need to mark society's revulsion at serious crime by the making of a deportation order, the need to weigh the Secretary of State's own view of the case. In my judgment there is force in this. The Immigration Judge acknowledges that the respondent committed a serious offence -- so much is, with respect, obvious -- but in considering the matters to be taken into account in striking the Article 8 balance he referred not to OH or any of the other cases decided in this jurisdiction but to a Strasbourg decision, the case of Chair and J B v Germany [2007] ECHR 1053. The points or criteria there set out are as it seems to me all aspects of the particular criminal's particular circumstances. I cannot find in the Immigration Judge's reasoning at paragraph 61 to 63 any considered view being taken of the public interest factors, which OH and earlier cases require. Such factors are generally and justifiably treated by the Secretary of State as of great importance. There is in the determination no acknowledgement of that circumstance. The statement of the obvious that the respondent committed a serious crime is with respect not enough, nor is the Immigration Judge's acceptance (paragraph 61) that the Secretary of State has to maintain and control an effective immigration policy and that this is "a weighty consideration not easily overridden". The demands of a fair immigration policy are something close to a constant in deportation cases involving Article 8. The Immigration Judge's reference to it, while apt in itself, does not touch the special policy considerations which very often -- it may be usually – justify the deportation of serious criminals. I consider for these reasons that ground 3 is made out. I turn to ground 4.
20. Here the complaint is that, given that the respondent has had no legal basis for remaining here since 1999, the Immigration Judge should have but failed to acknowledge:

"…the clear fact that a significant proportion of the respondent's Article 8 rights have been acquired while he was an overstayer."

The quotation is from paragraph 32 of the appellant's skeleton.

21. The Secretary of State refers in particular to the respondent's wife joining him in the United Kingdom in 2000 after his last leave expired and the birth of the youngest child in 2005.
22. I do not think it can be said that the Immigration Judge was unaware of or had forgotten the relevant immigration history. However, paragraph 61 to 64 where the Article 8 claim is addressed, disclosed no trace of the Immigration Judge having considered how the respondent's long illegal residence here, during which period the events happened which gave rise to his Article 8 claim, ought to affect the balance to be struck under Article 8. It is true, as Mr Canter pointed out this morning, that the Immigration Judge acknowledges the fact of the respondent's long stay without leave (see paragraph 61), but he leaves unsaid any account of the impact of the accrual of Article 8 rights during and only during that period. This was not in my judgment a minimal or marginal factor. To my mind it is particularly striking that the respondent's wife came from St Lucia to join him here in 2000 when he had no right whatsoever to be here himself. I consider that ground 4 is made out.
23. I will take grounds 5 and 6 together since they both concern observations made by the Immigration Judge about aspects of the criminal proceedings against the respondent. At ground 5 the complaint is that the Immigration Judge (see paragraph 63) appears to have attached weight to the fact that the sentencing judge in the Crown Court made no recommendation for deportation.
24. Ground 6 asserts that the Immigration Judge also (paragraph 63) attached weight to the fact that the respondent pleaded guilty. The Secretary of State says that the absence of a deportation recommendation has no force. The court had simply left it entirely to the Secretary of State to assess the public good in the defendant's deportation.
25. I am inclined to agree with that as a proposition, at least for the purposes of many cases, but the Immigration Judge's reference to the matter was not much more than a passing comment. I regard ground 5 as makeweight. There is perhaps more in ground 6 given that the plea of guilty was tendered, as I have said, after 15 witnesses had been called and, in refusing leave to appeal against sentence in the Court of Appeal Criminal Division, Andrew Smith J observed that there had only been a small discount for plea because the plea was entered late. Even so, looking at the Immigration Judge's observations in the round and the other factors to which he had regard, I have concluded that it is unreal to suppose that a more focussed treatment of this point as to the respondent's plea of guilty would have affected the result.
26. I turn briefly to ground 7. I ought to explain precisely how it arises. Paragraphs 339D of the Immigration Rules excludes a person from any claim to humanitarian protection where (see 339 D(i)) the Secretary of State is satisfied that he has committed a serious crime, and "serious crime" is defined in the relevant asylum protection instruction (that is an internal Home Office document) as any crime for which a sentence of at least 12 months has been imposed. It appears that the Immigration Judge was under the misapprehension (see paragraph 58) that whether a serious crime had been committed was a matter that was subject to the rebuttal provisions in the 2002 Act in the humanitarian protection context as it was in the asylum context. That was mistaken. The rule in 339D(i) is without qualification and, as I indicated at the outset, Mr Canter accepts that it excludes his client on the facts of this case. There is no doubt that he was convicted of a serious crime whether or not any reliance is placed on the internal definition in the asylum protection instruction relating to the length of sentence passed.
27. As I have said, we granted permission to appeal on ground 7 and it is for the reasons I have briefly given made out.
28. We therefore have to deal with the disposal of the case in the light of those conclusions. If my Lords agree with them after they have given judgment we invite counsel to address us.

Lord Justice Sedley:

29. I agree with my Lord's views on all aspects of the appeal. I will, if I may, add however, that if it were to become necessary for a tribunal to reassess the pros and cons under Article 8.2, not only would attention have to be given to those aspects which my Lord has identified under grounds 3 and 4 as not having been adequately addressed on Miss Broadfoot's appeal but also, I would think, to the countervailing fact that this man has put himself at risk by giving assistance to the police. All that, however, may lie in the future if it lies anywhere.

Lord Justice Rimer:

30. I agree with both judgments.

Order: Application granted in part.