England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Immigration Judge Parkes
IA/09992/2010

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/01/2012

Lord Justice McFarlane:

Background to appeal

1. This is an appeal by ED against the determination of the Upper Tribunal made in relation to his immigration status on 26 November 2010. ED was born on 19 October 1990 and is therefore now aged 21. He is Ghanaian. He was born in Ghana but arrived in the United Kingdom at the age of 6, in or about May 1997, in the care of his father and together with a number of his siblings. Since his arrival in the United Kingdom ED has not been back to Ghana and in fact has not left this jurisdiction since that time. In late 2001 ED claims, and indeed there is no evidence to the contrary, that his father effectively abandoned his children in this country when he failed to return from a visit to Ghana. At that time ED was aged 11. After trying to fend for themselves for a short period, this group of young people alerted their school to their circumstances and they were all received into accommodation under Children Act 1989, s 20 and became "looked after children" for the remainder of their minority. ED lived with foster carers, but it is plain that this was not an altogether productive or happy time for him.
2. In 2008, as he approached his eighteenth birthday, ED was advised by a social worker to apply to regularise his immigration status. Whilst there is some dispute as to the legality of the family's initial entry into the UK in 1997, it is common ground that for much, if not all, of ED's time in this country he has been here unlawfully in terms of his immigration status. On 12 September 2008 ED made an application to the Secretary of State for indefinite leave to remain. On 27 January 2010 the Secretary of State refused the application on the twin grounds that ED had no entitlement to be in this jurisdiction and that his continued presence here was not considered to be conducive to the public good in the light of his criminal conduct.
3. Reference to criminal conduct relates to the occasions when ED has been convicted before the criminal courts. In September 2004, at the age of only 13, he was convicted of an offence of handling stolen goods; in 2007 and again twice in 2008 there are convictions for possessing an offensive weapon; in 2009 he was before the court for breach of a previous order and in June of that year he received a 16 week suspended prison sentence and a 12 month community order for possession of an offensive weapon (a knuckle duster); finally, in October 2010 he was before the court once again for failing to comply with the community order.
4. At the time of communication of the Secretary of State's decision in January 2010, ED was informed that he was liable to removal and that, in fact, the decision had been taken to remove him to Ghana. ED exercised his statutory right to appeal against the Secretary of State's determination.
5. The appeal was heard by Immigration Judge O'Keeffe on 9 June 2010 and Judge O'Keeffe's determination was handed down on 21 June 2010. The judge dismissed ED's appeal for reasons to which I will turn in a minute.
6. ED sought permission to appeal the Immigration Tribunal determination. Permission to have the determination reconsidered was granted by Senior Immigration Judge Jordan on 27 August 2010 who posed the question for consideration in these terms: "He is a criminal but should he be regarded as a British criminal or a foreign one?". On 26 November 2010 Deputy Upper Tribunal Judge Parkes delivered his determination on the appeal. The appellant had not sought to make any criticisms of the finding made by the immigration judge regarding the appellant's offending and in particular the immigration judge's finding that there was a real risk of future offending by ED. In summary, Judge Parkes reviewed the detail of the immigration judge's decision but in terms could find no fault with it and therefore dismissed the appeal.
7. On 12 December 2010 ED applied to the Upper Tribunal for permission to appeal to the Court of Appeal on two grounds:

i) Error in assessment of the issue of family life; and

ii) The immigration judge failed to have proper regard to the level of seriousness of ED's offending.

The Upper Tribunal refused permission to appeal on 31 March 2011, but the

application for permission was renewed on paper before this court and on 20

July 2011 Sir Richard Buxton granted permission in relation to ground (ii). In

doing so Sir Richard made the following observation:

"The case raises the issue of whether the pattern of offending of moderate seriousness coupled with disobedience to court orders and lack of assurance of future non-offending, as set out in §§ 63-66 of the Determination of IJ O'Keefe, can in the case of a near-juvenile meet the criterion of seriousness of offending that is envisaged as required to justify expulsion in, e.g., Maslov. This is a question of some importance not to my knowledge previously determined, and therefore suitable for a second appeal."

The decision of the immigration judge

8. In terms of an exercise in judge-craft, it must be recorded that Immigration Judge O'Keeffe's determination is a model of clarity and thoroughness in drawing together and presenting the range of evidence to which she was exposed, describing the structure, as a matter of law, that she applied to that material, and listing the factors which she had taken into consideration and, in doing so, describing the weight that she gave to them.
9. A deal of time was taken, understandably so, in considering whether or not ED had established "family life" under ECHR, Art 8 in the UK. In the event the judge concluded that the evidence did not establish family life. No point is now taken in respect of that finding before us, and it is therefore not necessary for me to summarise the evidence relating to it.
10. In relation to "private life" rights under Art 8 the position was, however, different. The Secretary of State conceded that the circumstances of ED's life in this jurisdiction were sufficient to establish "private life" rights and that concession was accepted by the judge. Article 8 of the Convention was therefore engaged and the question for the immigration tribunal focussed upon the necessity and proportionality of the Secretary of State's intended removal of ED back to Ghana.
11. ED had no lawful right to be in the United Kingdom and had a number of criminal convictions. The justification upon which the Secretary the State relied was therefore twofold, namely the maintenance of proper immigration control and, secondly, the prevention of crime.
12. The decision of the European Court of Human Rights in the case of Maslov v Austria [2008] ECHR 546 and, in particular, the criteria at paragraph 71 of the ECtHR judgment have a prominent position in the immigration judge's determination and it is therefore helpful to set those criteria out at this stage:

"71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:

-  the nature and seriousness of the offence committed by the applicant;

-  the length of the applicant's stay in the country from which he or she is to be expelled;

-  the time elapsed since the offence was committed and the applicant's conduct during that period;

- the solidity of social, cultural and family ties with the host country and with the country of destination."

13. Thereafter the judge moved on to look at the various factors that were relevant to ED. Having reviewed the details of his offending behaviour, and, in particular, the fact that ED had on more than one occasion seemingly relapsed into criminal activity, despite having had what was described as " a wake up call" as a result of various events or interventions, the judge concluded at paragraph 65 that "I am not persuaded that the appellant is no longer at risk of further offending". The judge went on to explain the factors that he relied upon in support of that view.
14. Immigration Judge O'Keeffe considered the length of time, being "the majority of his life", that ED had spent in the UK. She considered and analysed the solidity of ED's ties with both the UK and Ghana. In that latter regard she found that ED would not be on his own in Ghana (as he had claimed) and that ED had sought to downplay his contacts in Ghana in order to bolster his claim.
15. In terms of matters of law, it is of note that, although she had not been referred to it, the judge expressly considered the Court of Appeal decision of JO (Uganda) and JT (Ivory Coast) v Secretary of State for the Home Department [2010] EWCA Civ 10; [2010] 1 WLR 1607 quoting the following extracts in her determination and summarising the factors that she was taking into consideration at paragraphs 72 to 74 of her determination:

"72. Although not cited to me I have considered the case of JO (Uganda) JT (Ivory Coast) [2010] EWCA Civ 10 where at paragraph 29 of its judgement the court said that the difference in legitimate aim pursued under Article 8(2) was important. 'The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise'. In this case the respondent's decision to remove pursued a double aim; the prevention of crime as well as the maintenance of effective immigration control. Although I do not underestimate the difficulties with which the appellant would be faced on return to Ghana after such a long period in the UK, I find that he would not be on his own in Ghana as he claimed. I find that he has sought to downplay his contacts in Ghana in order to bolster his claim.

73. I have considered the length of time the appellant has spent in this country, the age at which he entered the country, his social, cultural and family ties here and in Ghana, the nature and seriousness of his offences and the time elapsed since his offending and his conduct during that time. Whilst it could be argued that any one of the appellant's offences taken on its own was not serious, taken together they represent a pattern of ongoing and escalating offending culminating in possession of a knuckle duster for which he received a suspended sentence. I have also considered the appellant's response to the sentences imposed and his consistent failure to comply with court orders.

74. Although it was unclear on the evidence whether the appellant had entered the UK lawfully or unlawfully, for the majority of his time in the UK he has been here unlawfully. I have also considered paragraph 31 of JT and JO where it was said, 'The first sentence of the Maslov judgement ('for a settled immigrant 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) does not apply in terms to the removal of a person who has spent his life in the host country unlawfully, but the fact that person has been there since childhood is still weighty consideration in the article 8 balancing exercise'. This appellant has been in the UK since he was a child and I attach significant weight to that fact."

16. Whilst placing emphasis upon the fact that for most, if not all, of his time in the UK ED had been here unlawfully, the judge nevertheless noted that his presence here had been from his childhood and she expressly attached "significant weight" to that fact.
17. In addition to reference to case law, the judge considered the list of factors in Immigration Rules, paragraph 395C.
18. The judge concluded that the decision to remove ED was necessary in maintaining effective immigration control and in order to prevent crime and that it was proportionate.
19. As I have indicated, the upper tribunal judge regarded the Immigration Tribunal's determination as being unimpeachable and Deputy Judge Parkes concluded his review in the following terms:

"The case of JO (Uganda) and JT (Ivory Coast) EWCA Civ 10 was considered at paragraph 72. For the reasons given the Appellant had downplayed his contacts with Ghana. The Immigration Judge in effect found that the Appellant could be regarded as Ghanayan, there is no other conculsion that can be reached from the reading of the decision and the reasoning applied. This decision was reasoned and set out properly. The case of Maslov was considered and the Appellant's situation properly distinguished in paragraph 74. Again it was a decision the Immigration Judge was entitled to make and he did so properly."

The role of the Court of Appeal

20. An appeal to the Court of Appeal from a determination of the Upper Tribunal is limited by Tribunal, Courts and Enforcement Act 2007, s 13(1), (2) to appeal on a point of law. With respect to a similar provision relating to appeals to this court from SIAC, Lord Philips described the position in RB (Algeria) v Secretary of State for the Home Department [2010] 2 AC 110 in these terms:

"66. By restricting appeals to questions of law Parliament has deliberately circumscribed the review of SIAC's decisions that the Court of Appeal is permitted to undertake, so that it falls well short of the review that will be carried out if the case reaches the ECtHR, as described in Saadi. There is good reason for this……..

72…..Lord Bridge went on to hold, however, at p 532, that it was for the Secretary of State to decide as a matter of degree whether the danger posed to an asylum seeker, if returned, was sufficiently substantial to involve a potential breach of Article 33 of the Refugee Convention. Provided that he had asked himself that question and answered it negatively in the light of all the relevant evidence, the court could not interfere. That statement was made in the context of judicial review in a case that predated the Human Rights Act. It does, however, underline the fact that the assessment of whether a danger is sufficient to involve an infringement of a Convention right, albeit that the Convention was there the Refugee Convention, is a question of fact.

73. The significance of this conclusion in the context of these appeals is considerable. The Court of Appeal had no general power to review SIAC's conclusions that the facts that they had found did not amount to a real risk of a flagrant breach of the relevant Convention rights. SIAC's conclusions could only be attacked on the ground that they failed to pay due regard to some rule of law, had regard to irrelevant matters, failed to have regard to relevant matters, or were otherwise irrational. Their decisions could also be attacked on the ground that their procedures had failed to meet requirements imposed by law…[emphasis added]"

21. Lord Philips' words were an echo of the earlier description of Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2008] AC 678 at paragraph 118:

"This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently."

22. More recently the position of a Court of Appeal judge in this context was accurately described by both Hooper LJ and Sedley LJ in PE (Peru) v Secretary of State for the Home Department [2011] EWCA Civ 274:

"10. There will, of course, be cases where the "only permissible option" would be a finding that deportation would be proportionate or disproportionate but there will be cases where there are two permissible options. If that is the case then (absent other errors of law) the losing party will not be able successfully to appeal the finding." per Hooper LJ

"27. I agree, with the same reluctance as Hooper LJ, that this appeal has to be dismissed. The decision of the tribunal is properly structured, is balanced in its appraisal of the facts, omits nothing relevant, adopts a legally correct approach, and comes to a conclusion which, while others equally well qualified might well not have come to it, is tenable." per Sedley LJ

23. Before us, Mr Bonavero for the appellant, inevitably had to accept the narrow legal parameters within which any appeal can be brought before this court. He therefore sought to cast his one extant ground of appeal, which on its terms relates to the attribution of weight, more widely.
24. In essence the appellant's case before us is that:

a) the case of Maslov v Austria establishes a test whereby the decision maker must find "very serious reasons" to justify the removal of an individual to whom the test relates.

b) although it cannot be said that ED has been present in the UK "lawfully" in immigration terms, the "very specific" facts of ED's case mean that Maslov nevertheless does apply to his case.

c) if the "very special reasons" test does apply, then the immigration judge failed to apply it thereby falling into error as a matter of law.

25. The key link in Mr Bonavero's three ring chain is plainly b) above. In seeking to persuade us that ED came squarely within the Maslov decision he referred us to the decision of JO (Uganda) and JT (Ivory Coast) (above) and in particular paragraphs 28 and 31of the judgment of Richards LJ which read as follows:

"28. I have concentrated so far on deportation. Cases of ordinary administrative removal of persons unlawfully present in the country operate within the same legal framework and in my view require essentially the same approach. There, too, the essential question is whether, if expulsion would interfere with rights protected by article 8(1), such interference is proportionate to the legitimate aim pursued; and the answer to that question generally requires a judgment to be made on the basis of a careful and informed evaluation of the facts of the particular case."

"31. The criteria in Üner v The Netherlands 45 EHRR 421 are not directed in terms to an ordinary case of removal in pursuit of effective immigration control, but some of them have obvious relevance in that context too, both as regards family life and as regards private life. For example, what is said about ties arising from length of residence is obviously pertinent to an ordinary removal case: any difference in the extent or quality of ties established by a person present in this country unlawfully, as compared with those established by a lawfully settled immigrant, goes simply to weight. Similarly, the emphasis given to the position of a person who has been in the host country since childhood is relevant in the context of ordinary removal too. The first sentence of para 75 of the Maslov judgment ("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") does not apply in terms to the removal of a person who has spent his life in the host country unlawfully, but the fact that the person has been there since childhood is still a weighty consideration in the article 8 balancing exercise."

26. Mr Bonavero developed his argument by postulating various factual examples of families that were very obviously living life in surreptitious, devious and straitened circumstances as a result of their unlawful immigration status. He then sought to draw a contrast between such cases and that of ED who had simply been abandoned in this jurisdiction, not apparently understanding that he was not permitted to remain here, and, indeed, had been cared for by the State for much of his childhood through the intervention of the local social services authority.
27. That line of argument led the court to question what responsibility the Local Authority might have to advise ED, or even act on his behalf, in order to regularise his immigration status during his childhood and therefore render what was plainly "unlawful" into something that was "lawful", albeit that any immigration approval would be likely to be discretionary and would require re-evaluation and confirmation at the age of 18 if he was to remain here.
28. As is sometimes the case with a point in argument that is generated from the Bench, rather than resulting from the careful preparation of counsel, the question of whether or not the fact that ED was looked after by the social services had an impact upon the factors to be assessed by the immigration decision makers gained currency during the hearing.
29. Having now heard both Mr Bonavero and Mr Payne on behalf of the Secretary of State in relation to this point, I am entirely satisfied that it takes the matter no further in terms of establishing some additional legal factor which must stand separately and alone for consideration in the list of considerations that feed into the ultimate balancing exercise aimed at measuring necessity and proportionality.
30. The fact that ED had been in care was obviously in the mind of the immigration judge and, indeed, was referred to expressly by her on a number of occasions. Further, the judge not only gave weight to the fact that ED had been in this jurisdiction for much of his childhood, in the circumstances I have described, but in terms she gave that factor "significant weight". It therefore seems to me that it would add nothing for the judge expressly to have brought back into his list of considerations the fact that social workers were involved in decision making for ED during his childhood.
31. Once the point generated by the court has been laid to rest, the case for the appellant falls back starkly on the argument raised by Mr Bonavero that in some way the very specific facts of this case move ED, as a matter of law, under the "very special reasons" umbrella of Maslov despite the fact that he has been in this jurisdiction "unlawfully".
32. For my part, having looked carefully at the extract from JO and JT to which reference has been made, I cannot see any room for manoeuvre that would allow the very specific facts of the case to alter what is a strict and plainly expressed legal structure. Either an individual's presence is "lawful" or "unlawful" in immigration terms. The determination of that status then in turn indicates whether or not the need for "very special reasons" applies to his case. ED cannot claim "lawful" status. Therefore, as a matter of law, Maslov does not apply to his case and the judge was entirely correct in the approach that she took.
33. Once that determination is made, any live point of law before this court evaporates and, accepting as I do, the narrow strictures within which an appeal to this level in an immigration case must be considered, the appeal must inevitably fail.
34. Before concluding this judgment, however, I record that in my view Immigration Judge O'Keeffe conducted a conspicuously careful and insightful analysis of the material before her putting, as she must, the various factors for and against removal into the balance before ultimately determining the question of whether or not the Secretary of State's decision was necessary and proportionate in order to justify an action which would otherwise be in breach of ED's Article 8 private life rights.
35. On any view the level of offending on ED's criminal record is not as severe as that recorded in many if not all of the reported cases. In echo of the observations of Hooper LJ and Sir Stephen Sedley in PE (Peru) (above), another judge may have come to a different conclusion from that reached in this case. It is, however, important to stress that Judge O'Keeffe made her determination not only on the basis of the past offending and the non-custodial sentences that had been incurred, but because she had formed an adverse view on the prospects of ED offending against the criminal law in the future. Given that one of the twin aims of the Secretary of State's determination is "the prevention" of crime that was, in my view, a very significant finding. It is certainly not possible to say that Judge O'Keeffe's determination fell outside the range of reasonable outcomes open to her and, indeed, the appeal is not brought on that basis.
36. Finally, in view of the fact that Sir Richard Buxton granted permission to appeal upon the apparent understanding that this was a Maslov case and the court might be required to evaluate where a juvenile with this level of moderate offending might fall on one side or other of the line in terms of "seriousness of offending", I am satisfied, for the reasons that I have given, that on investigation this is not a strict Maslov case and the issue envisaged in the grant of permission to appeal does not, in the event, arise.
37. I would, therefore, dismiss this appeal.

Lord Justice Rix:

38. I agree.

Lord Justice Ward:

39. I also agree.