ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/24298/2009]
Strand, London, WC2A 2LL
B e f o r e :
(SIR ANTHONY MAY)
LORD JUSTICE RICHARDS
LORD JUSTICE HUGHES
| MA ( Pakistan )
|- and -
Secretary of State for the Home Department
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Mr Paul Greatorex (instructed by Treasury Solicitors ) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Richards:
The first determination
"In the pre-sentence report the writer acknowledged that the Appellant was aware of the possible physical and psychological harm to others who used drugs and was frank and honest about his offending behaviour, acknowledging that his wife, children and other family members who had lived with and supported him were victims. He did not seek to minimise the seriousness of the offence and expressed remorse. However he had an established pattern of behaviour and was assessed as having a medium risk of reconviction and of being a medium risk of harm to the public but it was acknowledged that during a previous drug rehabilitation order there was a fair level of compliance. The report also refers to a lack of sustainable motivation to address his drug problem."
"'I have considered carefully, because it seems to me an important issue, whether the commitment to an [rehabilitation] order could give me real confidence that it would produce the desired effect. I see nothing in what I have read or heard about you that gives me such particular confidence and, accordingly, I am secure in my view that, for a second offence of this type, a further prison sentence is the only sentence that can be passed.' She gave him credit for his plea of guilty."
"The Appellant and his wife separated in 2001. At the hearing she said that she asked him to leave because she could no longer cope with his addiction and the effect it was having on their children seeing their father in the condition he was. He went to live with his parents, just a few doors away and, although she did not maintain contact with him for some four years, the children continued to see him at their grandfather's house. In about 2005 his wife resumed communication with him. She did not divorce him and says that she will have him back once he has demonstrated that he is 'clean'. She gave evidence that she would want to see this demonstrated upon his release but if he lived for say three or six months with his other family and remained free of drugs she would have him back. In the statement he says that even when separated from his wife he would see the children everyday. Since he has been in prison his family has not visited him at his request but he talks to the children regularly on the telephone. He and his wife confirmed that English is the first language for the children. They do understand some Urdu and Punjabi [but] cannot read or write it and they think in English. His wife is in full-time employment as a teaching assistant and they doubt that she would be able to get a similar job in Pakistan."
"28. The sentencing judge was not satisfied that the Appellant had addressed his own problems in the past or had made a particular commitment to ridding himself of drugs. We believe that he now has that motivation. He can be in little doubt that if he is successful in this appeal, this will be his last chance of maintaining any semblance of family life. He has seen the effect of his addiction on his family. We are told that his children are depressed by what has happened. It was evident at the hearing that his father is upset and ashamed by his son. The Appellant has shown commitment to the drug-testing programme and knows that his lifestyle must change. He sees his best hope as arising from a commitment to his family, work and religion. It is noteworthy that he describes himself in his statement as an addict, thus acknowledging that his fight against drugs must be a continuing one.
29. Given the seriousness of the conviction in this case we have not found it to be an easy decision but we have reached the conclusion that, bearing in mind the age at which the Appellant arrived in the United Kingdom, his educational difficulties, the fact that he has spent the large part of his life here and has done so within the immigration rules, the support offered to him by his wife, children, parents and extended family, his acknowledgement of his wrongdoing, his determination to correct his behaviour and in particular the likely effect on his family, we find that the decision to deport him constitutes a disproportionate interference with his rights under Article 8 and, the presumption under paragraph 364 not applying, by analogy we find that the decision is not in accordance with the Rules."
The decision at first stage of reconsideration.
The appeal in respect of the decision at the first stage of reconsideration
Lord Justice Hughes:
Sir Anthony May:
Order: Appeal allowed