England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(IA/02306/2009)

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 July 2010

Lord Justice Moore-Bick :

1. This is an appeal against the order of the Asylum and Immigration Tribunal made on the reconsideration of the appellant's appeal pursuant to the order of Blake J. By its order the tribunal dismissed the appellant's appeal against the decision of the Secretary of State to deport him to Pakistan.
2. The appellant is a citizen of Pakistan, now aged 38, who entered the United Kingdom in September 1999 pursuant to leave to enter as a spouse of a person settled here. In September 2000 he was granted indefinite leave to remain. The appellant and his wife had three children, but their marriage failed and in late 2003 or early 2004 the couple separated. In early 2006 they were divorced. The children, a son now aged a little under 15 and twin daughters now aged 9, live with their maternal grandparents.
3. Between 5^th April 2007 and 3^rd December 2008 the appellant was convicted of a number of offences. He was also warned on two separate occasions by the Secretary of State that further offending might lead to his deportation, but neither was sufficient to deter him from offending again. Since they are important for the proper understanding of the tribunal's decision, it is necessary to set out the appellant's convictions and the warnings he was given:

(i) on 5^th April 2007 at Camberwell Green Magistrates' Court he was convicted of three offences of theft (shoplifting), two offences of failing to surrender to custody and breach of conditional discharge, for which he was sentenced to four months' imprisonment suspended, with a condition that he perform 100 hours of unpaid work, undertake a drug rehabilitation programme for 9 months and be under supervision for a period of 28 months;

(ii) on 9^th May 2007 at the South Western Magistrates' Court he was convicted of possessing a Class A drug, for which he was fined £75;

(iii) on 9^th August 2007 at Camberwell Green Magistrates' Court he was convicted of another offence of shoplifting. He was sentenced to one month's imprisonment and the suspended sentence passed on 5^th April was activated, the two sentences to be served concurrently;

(iv) on 26^th September 2007 at Sutton Magistrates' Court he was convicted of an offence of theft in respect of which he was sentenced to 14 days' imprisonment;

(v) on 17^th October 2007 at the South Western Magistrates' Court he was convicted of an offence of theft and was sentenced to 6 weeks' imprisonment;

(vi) on 25^th September 2007 the Secretary of State wrote to the appellant while he was in prison informing him that he had considered his immigration status and warning him that there was power to deport him, if that should be deemed conducive to the public good. He was warned quite explicitly that, if he should come to the notice of the Secretary of State again, further consideration would be given to his deportation;

(vii) on 19^th December 2007 at Kingston-upon-Thames Magistrates' Court the appellant was convicted of an offence of theft and sentenced to 8 weeks' imprisonment;

(viii) on 11^th April 2008 at the South Western Magistrates' Court he was convicted of three offences of shoplifting and was sentenced to 12 weeks' imprisonment;

(ix) on 22^nd May 2008 the Secretary of State wrote to the appellant again in terms similar to those of his previous letter;

(x) on 3^rd July 2008 at Wimbledon Magistrates' Court the appellant was convicted of two further offences of shoplifting and sentenced to a Community Order with a supervision requirement and a requirement to undertake a drug rehabilitation programme for 6 months;

(xi) on 11^th September 2008 at the South Western Magistrates' Court he was convicted of another offence of shoplifting and sentenced to 5 months' imprisonment;

(xii) on 3^rd December 2008 at Camberwell Green Magistrates' Court he was convicted of theft and sentenced to 14 days' imprisonment.

4. On 20^th January 2009 the Secretary of State wrote to the appellant informing him that he would be deported to Pakistan. The appellant lodged an appeal against that decision which was heard by the tribunal in March 2009. The tribunal heard evidence from the appellant, his brother and his former mother-in-law and considered the statement of another witness who was not called in person. It also considered various reports relating to the appellant's son, who suffers from behavioural difficulties and has special education needs. The tribunal found that the appellant enjoyed private and family life with his children in this country which could not be maintained if he were to be returned to Pakistan, but having considered the nature and extent of that family life it concluded that, having regard to all the circumstances of the case, it would not be disproportionate to deport him. It therefore dismissed his appeal.
5. Blake J. ordered the tribunal to reconsider the appeal because he was concerned that the panel might not have given sufficient weight to the interests of the appellant's children and to the principles embodied in the United Nations Convention on the Rights of the Child. However, on reconsideration of the appeal a differently constituted tribunal held that the panel had made no material error of law and likewise dismissed the appeal.
6. On behalf of the appellant Mr. Malik submitted that, contrary to the view taken on reconsideration, the original panel had made four errors of law in reaching its conclusion. His first submission was that it had approached the issue of proportionality in the wrong way as a result of failing to appreciate that where children and their parents enjoy family life together in this country deportation which would have the effect of severing the relationship between parent and child will be disproportionate in all but rare cases. He submitted that it would not be possible in this case for the appellant's children to move to Pakistan and although the appellant could maintain a degree of contact with his daughters by modern means of communication, because of his son's disabilities it would not be possible to maintain contact with him in that way. In support of his argument Mr. Malik relied on a passage in paragraph 12 of the speech of Lord Bingham of Cornhill in EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41, [2009] AC 1159, in which his Lordship observed that it will rarely be proportionate for the tribunal to uphold an order for removal if its effect is to sever a genuine and subsisting relationship between parent and child.
7. Two points may be made about that observation and Mr. Malik's submission based on it. First, as Mr. Malik reminded us, the ultimate question in cases of this kind, where family life cannot reasonably be expected to be enjoyed elsewhere, is whether, taking full account of all considerations weighing in favour of removal or deportation, as the case may be, it would prejudice family life in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8 of the European Convention on Human Rights: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, 187 paragraph 20. In other words, the question is whether in all the circumstances removal or deportation would be disproportionate. Following the use of the expression "exceptional" by Lord Bingham in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368 there was a tendency in some quarters to treat that epithet, contrary to his Lordship's intention, as if it embodied the principle itself. In Huang their Lordships made it clear that it did not. I detect in Mr. Malik's argument a tendency to the treat the word "rarely" in the same way. The test is and remains whether removal (or in this case deportation) would be disproportionate in all the circumstances.
8. The second point to make is that the present case is concerned with deportation rather than removal. Whereas in cases of removal the state has an interest in maintaining effective and fair immigration control, in deportation cases the state has other, no less important, interests, in the protection of the public through the prevention of disorder and crime. As Richards L.J. pointed out in KB (Trinidad and Tobago) v Secretary of State for the Home Department [2010] EWCA Civ 11, paragraph 17, that difference in aim and therefore of relevant considerations has to be factored into the analysis and may lead to a conclusion different from that which would have been reached if the issue were one of removal.
9. In the present case the original panel was, in my view, well aware that it was required to have regard to all the relevant considerations, in particular, since the appellant was seeking to rely on Article 8, the nature of the family life that he and his children enjoyed in this country as well as the nature and circumstances of his offending. It was accepted by all concerned that the children could not move to Pakistan and that if the appellant were deported his son could not maintain effective contact with him, as might have been possible but for his disability. The panel also took into account the particular nature and degree of that disability and the extent to which the appellant had been in contact with his children and had provided parental support. In my view there are no grounds for holding that the panel erred in law by adopting the wrong approach.
10. Mr. Malik's second submission was that the original panel wrongly considered that the public interest in deportation was overwhelming, despite the fact that the offences were all of a relatively trivial nature. This part of his argument seemed to straddle two rather different propositions: that the panel applied the wrong test and that, if it did not, its conclusion was irrational and therefore unlawful.
11. As to the first, Mr. Malik submitted that the correct test is not simply whether the public interest in deportation is overwhelming, but whether taking into account all the circumstances of the case deportation is "virtually inevitable". In support of that proposition he drew our attention to paragraph 28 of the judgment of Sir Scott Baker in HK (Turkey) v Secretary of State for the Home Department [2010] EWCA Civ 583 where he said:

"But, it seems to me, when it comes to the proportionality exercise it is necessary to form a view where on the scale of seriousness the respondent's conduct comes so that the Article 8 considerations can properly be balanced against the Rule 364 presumption. In some cases the seriousness of the offence is so overwhelming as to trump all else. This, however, was not a case, serious as it was, where the gravity was such that deportation was virtually inevitable albeit there would have to be compelling reasons to allow the respondent to remain here."

12. In using the expression "virtually inevitable" Sir Scott was adverting to the fact that in some cases the nature of the offending is so serious that almost no countervailing considerations will be sufficient to outweigh the public interest in deportation. He was not seeking to lay down any general principle. Indeed, Mr. Malik himself drew our attention to the authorities, already mentioned, which make it clear that the assessment of whether removal or deportation is proportionate requires the decision-maker to take into account and weigh up all the circumstances of the case.
13. When the panel in the present case expressed the view that the public interest in deporting the appellant was overwhelming it was not looking at the matter solely from the point of view of the Secretary of State; it was explaining its decision on the ultimate question. It used those words to emphasise the fact that in its view the public interest in deportation was very great and sufficient to override the limited family life enjoyed by the appellant and his children. None of these expressions is intended to encapsulate the test, however. The use of expressions such as "virtually inevitable" and "overwhelming" may in some cases help to explain why the considerations in favour of deportation outweigh strong factors pointing the other way, but that is all. Richards L.J. made this very point in paragraph 23 of his judgment in JO (Uganda) [2010] EWCA Civ 10, [2010] 1 WLR 1607 when he drew attention to the importance of distinguishing between the criteria themselves and phrases used in the course of applying them. There is nothing to support the argument that the panel failed to apply the correct principle. It is convenient to consider Mr. Malik's argument that the panel's conclusion was irrational when I come to consider his fourth submission.
14. Mr. Malik's third submission was that the panel failed to have proper regard to the interests of the appellant's children, which, he submitted, were paramount. He submitted that whenever a person at risk of deportation has children who live with him his deportation must be considered disproportionate if it would not be in the best interests of the children.
15. This submission involves a synthesis of the rights under Article 8 of the person at risk of deportation and his children to enjoy family life and the principles of the United Nations Convention on the Rights of the Child. Mr. Malik drew our attention to Articles 3.1 and 9 in particular and submitted that it was time to recognise that in cases of this kind the child's right to family life overrides all other considerations where the preservation of that family life is in its best interests.
16. That argument, buttressed by references to Üner v The Netherlands [2006] EHRR 873 and Boultif v Switzerland (2001) 33 EHRR 1179, was considered by this court in DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544, [2010] Imm AR 81, also a case concerning deportation. In paragraph 35 of his judgment Rix L.J., with whom Mummery and Moses L.JJ. agreed, said:

"In this connection, Mr Vaughan submits that other instruments which he cited speak of the best interests of the child being "a primary consideration". Indeed, he went so far as to submit that they amounted to the primary consideration. In my judgment, however, there is no support for that approach in Üner. Of course, in other situations, the welfare of a child might be the paramount concern of a court. In the present situation, however, conflicting public interests have to be balanced."

17. The reference to "a primary consideration" may reflect the fact that counsel in that case had relied on Article 3.1 of the Convention, as Mr. Malik did before us. Article 3.1 provides as follows:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."

18. However, as Rix L.J. observed, in cases such as the present conflicting interests have to be balanced. It would be contrary to principle to hold that the child's interests must always take precedence over the wider public interest where the two are in conflict. Mr Malik relied on Article 9.1, which deals with the separation of a child from its parents, but as Mr. Slater pointed out, Article 9.4 expressly contemplates the possibility that separation may come about as a result of deportation, even though that may not be in the best interests of the child.
19. In my view, therefore, one comes back to the question whether deportation is proportionate, giving due weight to the public interest and to the right to family life. In this case the original panel gave careful and detailed consideration to the effect of deportation on the appellant's children, as it was bound to. The panel did not err in law by failing to treat the interests of the children as paramount.
20. Finally, Mr. Malik submitted that the panel's decision was irrational in the sense that it fell outside the range of decisions properly open to it on the evidence before it. Two aspects of the case in particular fall to be considered: the nature of the appellant's offending and the effect of his deportation on his children.
21. Mr. Malik submitted that none of the offences of which the appellant was convicted was very serious. Taken individually that may be true, but there were many of them: ten convictions involving seventeen offences; he was a persistent offender over a period of almost two years. It should not be forgotten that persistent offending of that kind imposes burdens not only on the victims but also on the state in the form of providing resources for the prosecution and conviction of offenders, their punishment and rehabilitation. The requirement on two occasions to undergo drug rehabilitation treatment suggests that the appellant was stealing, mainly from shops, in order to fund an addiction. That of itself is not uncommon and such offences on their own might not in many cases justify deportation, but in the present case the appellant had received two written warnings of the risk he was running by continuing to offend. He received the first letter in September 2007 when he was in prison, but it did not cause him to change his ways because he continued to offend and was convicted again in December 2007 and April 2008. He received a second warning in May 2008 but went on to commit further offences of which he was convicted in July, August and December of that year. That and his failure to respond to drug treatment programmes suggests that he was unwilling or unable to change his behaviour.
22. The appellant has been in custody awaiting deportation since he completed the sentence imposed on him in December 2008. In his evidence to the panel he said that he had learnt his lesson and was now drug-free, but given his record and his failure to respond either to disposals intended to help him or to the warnings he received, the panel was entitled to find that there was no indication (by which I understand it to mean no reliable indication) that he would remain drug-free and obtain useful employment in the future. In making that comment the panel was not speculating or taking into account an impermissible factor. If the appellant were to abandon a life of drugs and crime, there was no reason to think that he would not be able to support himself. The prospects of his making such a change in his way of life was a factor the panel was entitled to take into account.
23. The panel considered the appellant's relationship with his children with great care. It noted that he had not been involved with the professionals seeking to help his son and came to the conclusion that although he had previously been involved in a close way with their life, the current pattern of his contact with them, disrupted as it had been by a prolonged period of offending and intermittent custodial sentences, was not of such a kind as to outweigh the public interest in his deportation.
24. The task of deciding whether deportation is or is not proportionate typically involves weighing up conflicting factors, as it did in this case. That is a task for the tribunal, whose decision can be challenged only if it can be shown that it made an error of law. Whether the members of this court, individually or collectively, would have come to the same conclusion as did the panel in this case is irrelevant. In my view the panel considered the relevant factors, it did not take into account factors that it should have disregarded and I do not think that its decision can be regarded as one that was not properly open to it on the material before it.
25. For these reasons I would dismiss the appeal.

Lord Justice Jackson:

26. I agree.

The Chancellor:

27. I also agree.