COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE NEUBERGER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
SIR SCOTT BAKER
| SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
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Seema FARAZI (instructed by Messrs Birnberg Peirce & Partners) for the Respondent
Hearing date: 12 May 2010
Crown Copyright ©
SIR SCOTT BAKER:
"The mob, of which you were both a part, hounded Mr Cormack down and trapped him in an alleyway where you set about him. He received a good kicking and beating, your words, Mr Robinson, when you gave evidence, including being attacked with a shovel by one of your number. Both of you had his blood on your trainers or your trousers consistent with a much greater involvement in your attack upon him than either of you were prepared to admit in this court or are still prepared to admit in the reports that I have read.
Mr Cormack received serious injuries as a result of the attack, although not nearly as serious as often seen in incidents such as these."
He continued a little later:
"…. this was an ugly horrific attack on an entirely innocent young man by a mob with whom you associated yourselves that night and you are fortunate, through no thanks of either of you, that Conrad Cormack's injuries were not more serious."
"Subject to paragraph 380, 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. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority."
Paragraph 380 provides:
"A deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Convention and Protocol relating to the status of Refugees or the Human Rights Convention."
"There is absolutely no doubt in our minds, and it is indeed conceded by both representatives, that this [respondent] is indeed prima facie liable to deportation as he has been convicted of a serious crime for which he received a prison sentence of two years. The Secretary of State has a duty to deter and prevent serious crime generally and to uphold the public abhorrence to such offending. He has a duty to remove foreign nationals who commit serious criminal offences and accordingly we do accept that the (Secretary of State) was acting fully in accordance with the law in deciding to deport the [respondent especially as in the circumstances of the crime committed by the [respondent]. Rule 364 clearly states that there is a presumption of the public interest that requires deportation."
The Tribunal then went on to consider Article 8. It was first necessary to decide whether Article 8 was engaged. This involved consideration of the separate, but factually interlinked, questions of family life and private life.
"Generally, the protection of family life under Article 8 involves cohabiting dependants, such as parents and their dependant minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
We were also referred to Arden L.J. at paragraphs 24, 25:
"There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.
Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: See S v United Kingdom (1984) 40DR 196 and Abdulaziz, Cabales and Balkandali v the United Kingdom  7 EHRR 471. Such ties might exist if the appellant were dependant on his family or visa versa…"
"The emotional dependence of the [respondent] on his immediate family has increased as a result of his offence and sentence and we do believe, contrary to the submission of Mr Whitewell, that this dependency does now go beyond the normal emotional ties between parents and siblings and accordingly, the [respondent's] family life is indeed engaged under Article 8."
Mr Sachdeva focuses firmly on the word "now" arguing that the implication is that the Tribunal had concluded there was previously nothing beyond the normal emotional ties and therefore no family life. In my judgment, however, paragraph 56 has to read in the context of paragraph 50 where the Tribunal recorded the submission of Mrs Farazi, for the respondent, that his offence and subsequent prison sentence had drawn the family even closer together than previously. The critical issue was whether family life existed at the date of the hearing. The Tribunal, rightly in my view, found that it did and I am unable to infer a conclusion that there was no family life such as to engage Article 8 immediately before the offence was committed.
"…. there is absolutely no doubt in our minds, and it is indeed conceded by both representatives, that this [respondent] is indeed prima facie liable to deportation as he has been convicted of a serious crime for which he received a prison sentence of 2 years. The (Secretary of State) has a duty to deter and prevent serious crime generally and to uphold the public abhorrence of such offending. He has a duty to remove foreign nationals who commit serious criminal offences and accordingly we do accept that the (Secretary of State) was acting fully in accordance with the law in deciding to deport the [respondent] especially as in the circumstances of the crime committed by the [respondent], Rule 364 clearly states that there is a presumption that the public interest requires deportation."
"On the other hand the offence was committed in very peculiar circumstances. [The respondent] was, with very good reason, angry at the fact that the innocent brother of a good friend of himself had been murdered only few days previously and this does go a long way to explain why he became involved in the hounding and attacking of a young person who he believed, as the result of wrong information, was the perpetrator of the murder. The [respondent] did not seek out his victim but just happened to be near a gang who believed that the victim had perpetrated the murder a few days earlier and even though he had tried to minimise his involvement, he did indeed take some responsibility for his actions, by offering to plead guilty to a lesser offence of wounding and assault occasioning actual bodily harm."
"The point, I think, shortly stated, is this. N (Kenya) makes it clear that proper weight must be given to the Secretary of State's policy on deportation, and in particular to the fact that she has taken the view, in the public interest that crimes of violence such as that committed by the appellant are sufficiently serious to warrant deportation. In such circumstances, her assessment had to be taken as a given, unless it is palpably wrong. It was, accordingly, at best a questionable operation for the first determination to evaluate the seriousness of the offence."
"Primary responsibility for the public interest, whose view of it is likely to be wide 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."
"Clearly the Secretary of State has a particular responsibility to make judgments as to what Judge L.J. called "broad issues of social cohesion and public confidence" within the system of immigration control. The Secretary of State's judgment on those matters must broadly be respected by the AIT, at least so far as the policy itself is concerned. As Wall L.J. stated in OP (paragraph 24), the Secretary of State's assessment of those matters has "to be taken as a given unless it is palpably wrong". But then the AIT must exercise its own judgment as to whether, in view of that axiom or given, the decision to remove or deport is disproportionate in the terms of Article 8 (2) of the Convention. That decision is to be arrived at on the merits and is entirely in the hands of the Tribunal."
"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."
But they made this reference only in the context of Mrs Farazi's submissions and they made no reference to it in the context of the private and family life the respondent had built up; nor did they refer in any detail to the nature of the respondent's private life. If the Tribunal failed to give due weight to this aspect of the case it can only have been beneficial to the Secretary of State's case.
Lord Justice Sedley :
Lord Justice Rimer: I agree with both judgments.