ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE AIKENS
LORD JUSTICE ELIAS
| RU (BANGLADESH)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Ms Lisa Giovannetti QC (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 20 May 2011
Crown Copyright ©
Lord Justice Aikens :
The background to the appeal
The statutory framework
The Reasons in the First Determination
"53. It is not in dispute that the respondent's decision is in accordance with the law, with reference to the provisions of the 2007 Act. It is clear that the aim of the respondent's decision is the maintenance of a sensible immigration control policy and, more particularly, the avoidance of crime and disorder and the protection of members of the public; a very weighty consideration indeed and one which we have taken fully into account. We would add that, during his submissions, Mr Hayes indicated that, whatever might be the appellant's present propensity to re-offend, the seriousness of the appellant's previous offence, coupled with the deterrent effect of his deportation upon prospective offenders, were factors which, in themselves Mr Hayes argued, justified deportation. We have taken these submissions fully into account.
54. Clearly, the offence committed by the appellant in the latter part of 1998 was a very serious offence indeed and it would appear that an initial charge of attempted murder was ultimately reduced to GBH with intent. The seriousness of the offence is reflected kin the sentence meted out to the appellant; namely, 15 years' imprisonment.
55. We have also given very careful consideration to the prospective risk to past victims, and prospective future victims, at the hands of the appellant, it being clear that the appellant's offending occurred in circumstances surrounding the breakdown of his previous marriage. The respondent has indicated concern that a similar scenario might occur at some stage in the future, at which point a future wife, or relatives of that wife, might similarly be at risk at the appellant's hands. This is a factor which we have given full consideration to and to which we have referred below in terms of the likelihood of the appellant re-offending.
56. Additionally, we have taken into account the fact that, with reference to the terms of the 2007 Act, the appellant's deportation is conducive to the public good, although we do not accept that his deportation would act in any meaningful way as a deterrent to others, as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation. Nevertheless, we bear in mind that the appellant's offence, some 10 years ago, was an extremely serious one and one which, on its own, might well justify deportation."
"75. Clearly, for the appellant's removal to be deemed proportionate, it would have to be established, the burden in that regard being upon the respondent, that the appellant's expulsion from the United Kingdom was a necessary event (see paragraph 54 of the judgment in Grant), which refers to the earlier judgment in Uner v The Netherlands  ECHR 873). Having taken into account the likelihood of the appellant's re-offending, which is clearly significantly low, together with, in particular, the seriousness of the offence committed by him, and also having taken into account all of the other factors referred to by us above, we conclude that the appellant's deportation is not necessary and is a disproportionate response by the respondent, bearing in mind the evidence which we have considered and which is now before us.
76. In reaching our above conclusion we have borne in mind the reasoning of the House of Lords in its judgment in Huang  UKHL 11, and note that the Court, in that judgment, indicated that, in circumstances where an individual was unable to satisfy the requirements of a relevant Rule, Regulation or similar, it was envisaged that it would be in very few cases where the respondent's decision relating to that individual would be deemed to involve a disproportionate interference with that individual's rights under Article 8(2). We appreciate that this is not a strict legal test and we reiterate that we conclude that the evidence before us in the present case causes us to be satisfied that the relevant balancing exercise should weigh in the appellant's favour. Based upon the evidence before us, and the facts as found by us, we conclude that the respondent's decision involves a disproportionate interference with the appellant's rights under Article 8(2). Thus, the appellant's Article 8 appeal succeeds."
The reasons of Judge Storey, at the first stage reconsideration, for ordering reconsideration of the AIT's determination.
"6. It seems to us that this paragraph betrays an erroneous grasp of the concept of public good and the public interest. The guidance given by the Court of Appeal in cases such as OH (Serbia) and DS(India)  EWCA Civ 544 is binding on AIJ judges. A main plank of that guidance is that AIT judges must have regard to the significance of deportation as a deterrent. As stated by Rix LJ at para 37 of DS (India):
"The public interest in deportation of those who commit serious crime does well beyond depriving the offender in question from the chance to re-offend in this country; it extends to deterring and prevent serious crime generally and to upholding public abhorrence of such offending."
The notion of deterrence is this context is not one that depends on examining whether deportation of the individual who is the subject of a decision to deport would be a deterrent, but on the policy of deportation as a deterrent."
"8. We consider that, given the centrality to the appeal of the balancing exercise to be conducted under Article 8, the error of the panel in para 56 had a real possibility of affecting the outcome of the appeal. "
The Second stage Determination Reasons
"…. Having taken all the circumstances into account we find that the nature of the offence committed by the Appellant: the use of a firearm and recourse to violence to resolve a domestic dispute in part in order to make a point to a community are weighty considerations. In our view the public policy of deterrence and expression of disapproval is reinforced by the deportation of those who behave in such a way. We find that the interests of society outweigh those of the Appellant notwithstanding the progress he has made to address his offending behaviour. In our view the Decision is proportionate."
The arguments on appeal
The changes brought about by sections 32 and 33 of the UKBA
"…Although the executive's policy as such has been superseded, it is readily inferred that the policy factors identified in OH(Serbia) were impliedly endorsed and if anything reinforced, by Parliament's intervention. Indeed, as I have said, Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under Article 8. Although [counsel for the SSHD] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved".
Did the First Determination Err in law and if so, was the error material?
Conclusion and Disposal
Lord Justice Elias
Lord Justice Longmore
3 General provisions for regulation and control.
(5) A person who is not a British citizen is liable to deportation from the United Kingdom if—
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
5 Procedure for, and further provisions as to, deportation.
(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force.
NATIONALITY IMMIGRATION & ASYLUM ACT 2002
82 Right of appeal: general
(3A) Subsection (2)(j) does not apply to a decision to make a deportation order which states that it is made in accordance with section 32(5) of the UK Borders Act 2007; but–
(a) a decision that section 32(5) applies is an immigration decision for the purposes of this Part, and
(b) a reference in this Part to an appeal against an automatic deportation order is a reference to an appeal against a decision of the Secretary of State that section 32(5) applies.
(4) The right of appeal under subsection (1) is subject to the exceptions and limitations specified in this Part.
92 Appeal from within United Kingdom: general
(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(4) This section applies to an appeal against an immigration decision of a kind specified if the appellant—
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom,
UK BORDERS ACT 2007
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.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive 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 sections 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, or
(b) the United Kingdom's obligations under the Refugee Convention.
(7) The application of an exception–
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4.
(1) In section 32(2) the reference to a person who is sentenced to a period of imprisonment of at least 12 months–
(a) does not include a reference to a person who receives a suspended sentence (unless a court subsequently orders that the sentence or any part of it (of whatever length) is to take effect),
(b) does not include a reference to a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months,
(c) includes a reference to a person who is sentenced to detention, or ordered or directed to be detained, in an institution other than a prison (including, in particular, a hospital or an institution for young offenders) for at least 12 months, and
(d) includes a reference to a person who is sentenced to imprisonment or detention, or ordered or directed to be detained, for an indeterminate period (provided that it may last for 12 months).
(4) In sections 32 and 33–
(a) "British citizen" has the same meaning as in section 3(5) of the Immigration Act 1971 (c. 77) (and section 3(8) (burden of proof) shall apply),
(b) "Convention rights" has the same meaning as in the Human Rights Act 1998 (c. 42),
(c) "deportation order" means an order under section 5, and by virtue of section 3(5), of the Immigration Act 1971, and
(d) "the Refugee Convention" means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.
Note 1 Section 38(1) of the UKBA makes it clear that “period of imprisonment” does not include a suspended sentence, unless it becomes effective, nor to cases where the period of imprisonment is over 12 months only because the sentences are consecutive. But the phrase “period of imprisonment” does include detention in a YOI or hospital and where the order is for imprisonment or detention for an indefinite period that could be at least 12 months. [Back] Note 2 This Rule is, effectively, the executive policy guidance for the SSHD when considering whether to deport under section 3(5) of the 1971 Act. Rule 364 has, of course, been considered in much case law. [Back] Note 9  INLR 109 at ;  EWCA Civ 694. Wilson LJ identified these as: (a) the risk of re-offending, (b) the need for possible deportation to be seen as a means of deterrence, and (c) the role of using deportation orders as an expression of the public’s revulsion at serious crimes and the need to build public confidence in the treatment of foreign citizens who have committed serious crimes. [Back]
Note 1 Section 38(1) of the UKBA makes it clear that “period of imprisonment” does not include a suspended sentence, unless it becomes effective, nor to cases where the period of imprisonment is over 12 months only because the sentences are consecutive. But the phrase “period of imprisonment” does include detention in a YOI or hospital and where the order is for imprisonment or detention for an indefinite period that could be at least 12 months. [Back]
Note 2 This Rule is, effectively, the executive policy guidance for the SSHD when considering whether to deport under section 3(5) of the 1971 Act. Rule 364 has, of course, been considered in much case law. [Back]
Note 9  INLR 109 at ;  EWCA Civ 694. Wilson LJ identified these as: (a) the risk of re-offending, (b) the need for possible deportation to be seen as a means of deterrence, and (c) the role of using deportation orders as an expression of the public’s revulsion at serious crimes and the need to build public confidence in the treatment of foreign citizens who have committed serious crimes. [Back]