COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL (3 JUDGES)
THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE CARNWATH
THE RIGHT HONOURABLE LORD JUSTICE RIMER
| AP (TRINIDAD & TOBAGO)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Carine Patry Hoskins (instructed by Treasury Solicitor) for the Respondent
Hearing dates : Thursday 7th April 2011
Crown Copyright ©
Lord Justice Longmore:
"(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 that "to weigh" this feature."
"legislative policy has occupied what was formerly the field of executive policy."
"32 Automatic Deportation
(1) In this section "foreign criminal" means a person –
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that –
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c77), the deportation of a foreign criminal is conductive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6) The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless –
(a) he thinks that an exception under section 33 applies,
(b) the application for revocation is made while the foreign criminal is outside the United Kingdom, or
(c) section 34(4) applies.
(7) Subsection (5) does not create a private right of action in respect of consequences of non-compliance by the Secretary of State.
(1) Section 32(4) and (5) –
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to section 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach -
(a) a person's Convention rights ….
"You as I say have previous convictions, two of them, but really one of significance for possession of drugs, certainly none for supply, but you committed this offence within days of the imposition of a suspended sentence of imprisonment and against the background of persistent breaches, it seems to me, of the alternatives to custody, but I am mindful that there may have been some progress in your life because of progress in your attitude towards offending."
"36. … We note the early age of the appellant when he came to this country and the fact that he has spent seventeen years in this country. We note too that he has close family in this country including his mother, sisters, brother, cousin, nieces and nephews, uncle and aunt. Although his relationship with his former partner is not the same as husband and wife any longer, he is devoted to his daughter and we have heard evidence from his former partner (who was very truthful in stating that she no longer was in a relationship with the appellant) that he was a good caring father. We note the impressive number of certificates which the appellant has gained. We also note the judgment particularly in Beoku-Betts v Secretary of State for the Home Department  and we are satisfied that the effect of his proposed removal on all members of his family unit in the UK would result in removal being disproportionate, especially since he has a child who has a strong bond with him and he with her and we have heard credible evidence that he is a good and caring father. In terms of the effect of violence to his former partner, they appear to be on good terms. The violence was, without wishing to undermine its importance, not such that would be so threatening as to outweigh other aspects of his case. He is now not living with his partner and therefore any threat is minimised and certainly it is clear that there is no threat to his daughter.
37. The appellant appears to be very remorseful of his crimes and indeed there is no evidence at all that he has resorted back to drug taking, pushing or possessing. Indeed we have scanned the probation report and there is very little, if anything, on the risk of returning to his drug offences.
38. We therefore find, in striking a fair balance between the rights of the individual and the interests of the community, that our assessment of proportionality is that a decision to remove the appellant is in all the circumstances not proportionate and we allow this appeal under Article 8 of the ECHR."
Grounds of Appeal
i) that there was no error of law in the first decision of 1st March 2009 so that there should never have been a reconsideration;
ii) that since the Home Office believed AP had entered the United Kingdom in 1991 before his fourth birthday, the second decision should not have proceeded, as it did in para 37(b), on the basis that AP had been in the United Kingdom "since he was comparatively young".
Submissions on Ground 1
Lord Justice Carnwath:
"…The role of the court is to correct errors of law. Examples of such errors include misinterpreting the ECHR (or in a refugee case, the Refugee Convention or the Qualification Directive); misdirecting themselves by propounding the wrong test on some legal question such as the burden or standard of proof; procedural impropriety such as a breach of the rules of natural justice; and the familiar errors of omitting a relevant factor or taking into account an irrelevant factor or reaching a conclusion on the facts which is irrational.
But the court should not be astute to characterise as an error of law what, in truth, is no more than a disagreement with the AIT's assessment of the facts. Moreover, where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account." (para 44-5)
"…In terms of proportionality, we consider various aspects including the risk of re-offending, 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, the expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes. We remind ourselves that primary responsibility for the public interest resides in the respondent and a Tribunal hearing an appeal against the 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." (para 31)
They also referred to the "very serious" nature of the crime (para 32).
"Whilst the Tribunal of the matters it must take into consideration in considering the question of proportionality at paragraph 31 of its determination, it has not demonstrated in reaching its conclusions that it did take those matters into consideration…
…I believe that the Tribunal did err in its consideration of the question of proportionality by failing to properly have regard to and apply the decisions of the Court of Appeal in N (Kenya) and OH (Serbia)" (paras 12 and 13).
As I read that passage, it contains two separate criticisms of the first panel: first, failure to "demonstrate" in its reasons how it had applied the relevant guidance; secondly, failure "properly to apply" the guidance.
"Paragraph 31 set out the bare principles of OH. Thereafter, in conducting the proportionality balancing exercise, the only detailed factors considered in any detail or at all were those which were favourable to the Appellant. Other than the reference to the Appellant's 'having committed a very serious crime' (at 32) the Tribunal's consideration of the proposed interference with the Appellant's family life discloses nothing which tells in favour of the Appellant's deportation."
"…If, as occurred in this case, a tribunal articulates a self-direction and does so correctly, the reviewing court should be slow to find that it has failed to apply the direction in accordance with its terms..."
OH (Serbia) and the 2007 Act
"364 Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, 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."
There followed a list of eight factors to be taken into account, including age, length of residence, connections with the UK, domestic circumstances, and so on, and -
"(vi) previous criminal record and the nature of any offence of which the person has been convicted;"
Rule 380 of the Rules provided that a deportation order would not be made if his removal would be contrary to the UK's obligations under the Refugee Convention or the Human Rights Convention.
"… translating a legitimate disagreement with the adjudicator's conclusion into an illegitimate finding of perversity on his part…" (para 78)
I agree with Longmore LJ that the legal basis of the majority's reasoning (most clearly stated by Judge LJ, and as understood by Sedley LJ) was "Wednesbury unreasonableness", in other words irrationality or perversity.
"…In their concluding paragraphs there is, of course, a reference to the seriousness of the offence, and a finding, accepted to be amply founded, that there was a low risk of the appellant's reoffending. But such was only one facet of the public interest engaged by this street stabbing on the part of a teenager armed with a knife. There was there no reference in terms by IJ Elvidge and Mrs Jordan to the public interest even though such was the matter against which the compassionate circumstances fell to be balanced. There was no reference to the significance of a deportation order as a deterrent. There was no reference to its role as an expression of public revulsion or in the building of public confidence…
…in the light of their failure to address those important facets of the public interest, IJ Elvidge and Mrs Jordan never proceeded to weigh the approach to them adopted by the respondent in the context of the facts of the case" (para 16)
Thus the tribunal had erred in law by "omitting a relevant factor" (in Sir John Dyson's words): that is, the Secretary of State's policy including the public interest considerations underlying it.
"By the rewriting of para 364 of HC 395 in July 2006 and the introduction of automatic deportation of foreign prisoners in 2008, different Home Secretaries have gone much further. There is no longer any question in domestic law of 'giving appropriate weight' to the deterrent policy. It trumps in every case, where deportation is automatic and, so far as domestic law is concerned, there is no realistic balancing exercise to be performed any more."
The editors note, however, that in N (Kenya) the court saw no difference in the balancing exercise under the former rule 364 and article 8, and suggest that in cases where there is family or private life the new automatic provisions "may not have changed anything very much".
"We note, as an aside, that N (Kenya) was decided at a time when there was no legislative guideline or policy in place to determine which offenders ought to be deported, subject always to human rights considerations, and which need not be. Hence the weight required by the Court of Appeal to be given to the Home Secretary's view of the public interest in arriving at the adjudicator's or immigration judge's own conclusion. It is possible that this always difficult exercise – that is to say, giving weight but not primacy to the opinion of another authority in arriving at an independent judgment – has been superseded by the enactment of section 32 of the UKBA 2007. This section draws a bright line, calling for no further judgment, where its terms are met: a "foreign criminal" faces "automatic deportation". Other foreign offenders do not – they may be deported, but there is no legislative presumption that they will be. Both classes may resist deportation on human rights grounds; but in the case of a "foreign criminal" the Act places in the proportionality scales a markedly greater weight than in other cases. In this situation it is not easy to see what separate or additional weight is to be given to the Home Secretary's own judgment beyond the fact that it is known to be in favour of deportation. Arguably the executive's view of policy and its immediate requirements has been superseded by the legislature's…" (para 24, emphasis added)
"But the preface to Baroness Hale's statements in  of AH (Sudan) was her suggestion that "the ordinary courts should approach appeals from them with an appropriate degree of caution". My view is that the context of her remarks in AH (Sudan) … is the interface between a non-specialist court and a specialist tribunal; and that, when the same tribunal is required to consider whether, by a different constitution, it has perpetrated an error of law, the remarks in AH (Sudan) have no application…" (para 19)
"(the judgment) reveals the anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings." (para 15)
That general statement is identical in effect to the approach advocated by Sir John Dyson in the passage referred to earlier in this judgment.
Lord Justice Rimer: