England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Designated Immigration Judge Woodcraft
IA/19096/2009

		Royal Courts of Justice Strand, London, WC2A 2LL
		1 May 2012

Lord Justice Moore-Bick :

1. This is an appeal against the decision of the Upper Tribunal (DIJ Woodcraft) dismissing the appellant's appeal against the decision of the Secretary of State not to revoke a deportation order made against him in December 2007.
2. The appellant was born in Jamaica in March 1985 and is a national of that country. In March 1994 his mother married his step-father, who is a British citizen, and came to live here in October that year. She has lived here ever since. The appellant himself came to the United Kingdom in November 1996 when he was 11 years old on a visitor's visa which was later extended to 31^st December 1997. In February 1997 his mother instructed an immigration consultant to make an application on his behalf for indefinite leave to remain, but the consultant failed to carry out his instructions and the application was not pursued. As a result the appellant has been living in this country illegally since 1^st January 1998.
3. Between November 1996 and the summer of 2002 the appellant attended school, obtaining 8 passes at GCSE level. Between 2002 and 2005 he attended college, obtaining 4 BTEC passes in information technology. After taking part-time employment the appellant enrolled at Buckinghamshire New University in September 2006 to begin the foundation course, but he could not meet the costs involved and was unable to continue his studies. Then, on 4^th April 2007 he was sentenced to 30 months' imprisonment following a plea of guilty to an offence of possession of a Class A drug with intent to supply. The deportation order the subject of these proceedings was served on him on 10^th December the same year. On 23^rd January 2008 his appeal against deportation was dismissed.
4. In the meantime the appellant had met his current partner, Ms Serena Alexis, a UK citizen, and they had entered into a relationship. In July 2009 their son, Ashton, was born. Ashton is also a UK citizen.
5. In June 2009 the appellant made representations to the Secretary of State which were treated as a fresh application for the deportation order to be revoked. That application was refused in a letter from the Secretary of State dated 3^rd July 2009. The appellant promptly lodged an appeal with the First-Tier Tribunal. In October 2009 the Tribunal allowed his appeal on the grounds that his removal to Jamaica would involve a disproportionate interference with his right to family and private life contrary to Article 8 of the European Convention on Human Rights ("ECHR").
6. The Secretary of State sought and was granted permission to appeal against the decision of the First-Tier Tribunal. In August 2010 DIJ Woodcraft found that the First-Tier Tribunal had committed an error of law and directed that there be a fresh hearing before the Upper Tribunal. In the event the matter came on for hearing before DIJ Woodcraft in December 2010, when the appellant, Ms Alexis and the appellant's mother gave evidence in person. The Tribunal also had the benefit of an expert report from a psychotherapist, Ms Cohen, who gave evidence about the relationship between the appellant, Ms Alexis and Ashton and the effect on them of separation resulting from the appellant's removal.
7. The Tribunal's decision dismissing the appeal was promulgated just over a month later on 28^th January 2011. The basis of that decision can be summarised as follows:

(a) the appellant (who had a previous conviction for robbery in the course of which the victim was threatened with a knife) posed a significant risk to the community [66];

(b) neither the appellant's mother nor Ms Alexis had sufficient influence over him to prevent his re-offending;

(c) the offence for which he was sent to prison was serious and would have attracted a sentence of several years imprisonment but for the guilty plea;

(d) accordingly, it was reasonably open to the respondent to make a deportation order in respect of the appellant [69];

(e) the appellant had never lived with Ashton and was not likely to do so in the immediate future; the Tribunal had not been given a full picture of the appellant's relationship with his son and was not satisfied that that it outweighed the legitimate aim of protecting the public from him [79];

(f) the relationship between the appellant and Ms Alexis was tenuous and his removal and the consequent disruption of their relationship would not involve a disproportionate interference with the Article 8 rights of either of them [86]; in any event, it would not be unreasonable to expect Ms Alexis to move to Jamaica with the appellant; Ashton was young and could adapt to life in Jamaica [89];

(g) the appellant's offences were serious and he posed a risk of further offending [90];

(h) the appellant's relationship with his half-siblings was not so strong that his removal would involve a disproportionate interference with his rights under Article 8 [92]; and

(i) there was little evidence that the appellant had worked or that he had significant friendships in this country that would be disrupted by his removal [96].

8. The grounds of appeal are that the Tribunal failed to consider Ashton's best interests in the manner required by ZH Tanzania v Secretary of State for he Home Department [2011] UKSC 4, [2011] 2 AC 166; that it failed to consider the appellant's family and private life, and that of Ms Alexis, Ashton and other members of his family, in the round; that it failed to take into account important evidence; and that it failed to consider whether the nature of the appellant's offending was so serious as to justify his removal notwithstanding his personal circumstances, as required by the decision of the European Court of Human Rights in Maslov v Austria [2009] INLR 47.

Failure to consider Ashton's best interests

9. In ZH (Tanzania) v Secretary of State for the Home Department the Supreme Court, drawing principally on article 3.1 of the United Nations Convention on the Rights of the Child, held that the best interests of a child who may be affected by the removal of an adult to another country must be treated as a primary consideration in the manner described by Lady Hale in paragraphs 21-29 of the report. Having referred to the Australian case of Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133, she said in paragraph 28:

"This did not mean (as it would do in other contexts) that identifying their [sc. the children's] best interests would lead inexorably to a decision in conformity with those interests. Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia." (Emphasis added.)

10. Lord Kerr said in paragraph 46:

"It is a universal theme of the various international and domestic instruments to which Baroness Hale JSC has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them."

11. In addition it is to be borne in mind that Ashton is a citizen of the United Kingdom and that his nationality is itself a factor that has to be taken into account. Lady Hale put it in this way in paragraph 30:

"Although nationality is not a 'trump card' it is of particular importance in assessing the best interests of any child."

12. Judgment in ZH (Tanzania) was given a few days after the decision in the present case was promulgated, so DIJ Woodcraft did not have the benefit of the guidance which it affords. Nonetheless, it represents the culmination of a development in the law reflected in a number of earlier authorities to which he referred as well as in section 55 of the Borders, Citizenship and Immigration Act 2009. It was accepted that the principles stated by Lady Hale are directly applicable to the present case.
13. In paragraphs 73 to 79 of the decision DIJ Woodcraft considered the relationship between the appellant and Ashton, but did so very much from the appellant's perspective as part of his enquiry into the extent to which removal would infringe his rights under article 8 of the ECHR. He dealt with it in the following terms:

"78. Whilst I accept that the Appellant has a relationship with Ashton and does have contact, I did not find that I was given a reliable account of how frequently the Appellant sees Ashton. . . .

79. If the Appellant were to be deported to Jamaica there would be a serious effect both on his relationship with Ashton and any opportunity to develop that relationship. It is important to consider the quality of the Appellant's relationship with Ashton to determine the extent of that interference. I do not consider that I have been given a full picture of the relationship between the Appellant and Ashton. The evidence of visits has been contradictory both as to times and where they take place. Even if I have been given an accurate picture and the Appellant can show the close attachment described, I do not find I can say that the interference with that relationship when weighed against the Appellant's serious and repeat [sic] criminal offending would be such that the relationship being maintained and developed would outweigh the legitimate aim of the protection of the public."

14. In paragraph 80 he touched on the question of how the appellant's removal would affect Ashton, saying:

"It was said in DS, that while 'the welfare of a child might be the paramount concern of a court, conflicting public interests have to be balanced' (paragraph 35). Evidence was submitted that it was less beneficial to a child to be brought up in a single parent family than by two parents. It may be, as in DS, that there is no option facing the Appellant and family members which is without evil (paragraph 31 ibid)."

15. Miss Chan submitted that in these paragraphs DIJ Woodcraft had adequately directed his mind to the effect that the appellant's removal would be likely to have on Ashton, but in my view that is not so. The case called for a careful appraisal of Ashton's circumstances and the extent to which his welfare would be better served by allowing the appellant to remain in this country, thereby making it possible for the child to develop a proper relationship with his father of whom he will otherwise have no recollection. It also called for Ashton's welfare to be given primary (though not overwhelming) importance. Paragraph 79 of the decision gives the clear impression that DIJ Woodcraft was far from persuaded that the Appellant had as close an attachment to Ashton as he professed, but, in order to do justice to Ashton's position, he ought to have made careful findings about that and should have considered how the relationship might develop in the future if the appellant were allowed to remain in this country. That would have enabled him to decide what was in the child's best interests. In the light of his decision on that question he could then decide whether the nature of the appellant's offending nonetheless required his removal. In my view DIJ Woodcraft did not give sufficient consideration to what was in Ashton's best interests or give his welfare the degree of importance it ought to have received.

Failure to give proper consideration to family and private life

16. In paragraphs 70 and 71 of his decision DIJ Woodcraft directed himself in accordance with the principles set out in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 2 AC 368, Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 and Chikwamba (C (Zimbabwe) v Secretary of State for the Home Department [2008] UKHL 40, [2008] 1 WLR 1420) and in doing so he expressly recognised that he was obliged to take into consideration the Article 8 rights of the appellant's immediate family. He then proceeded to examine the nature and extent of the relationship between the appellant and various members of his close family, including Ms Alexis, Ashton, his mother, his step-father and his step-siblings. In my view he cannot be criticised for looking at each of the relationships in that way; indeed, I rather doubt whether he could have carried out his function properly without doing so. The burden of Mr. Knafler's criticism, however, was that, having done so, he failed to assess the totality of the appellant's family and private life (as well and that of the members of his family) before balancing that against the interests of the public in securing his removal.
17. In paragraph 72 of his decision the judge recognised that in some respects the appellant's family relationships were cumulative and might be argued to be greater than the sum of their parts, so it can be said that he was aware of the need to consider their overall strength. Nonetheless, I think there is force in Mr. Knafler's submission that the judge failed to consider the overall significance of the different individual relationships to which he referred. Although he spent some time examining the nature and extent of the appellant's relationship with the different members of his family, DIJ Woodcraft did not explicitly draw the different strands together before deciding whether, viewed overall, removal was proportionate in this case. Nor did he make any significant assessment of the appellant's private life, despite the fact that he had come to the United Kingdom when he was nearly 11 years old and had been living in this country for some 14 years. All he said about that was that the appellant had "formed a private life of sorts" during the time he had been in this country, but that his failure to regularise his immigration status and his repeat offending far outweighed his claim that his private life should be spared from interference.

Failure to consider relevant evidence

18. As justification for the refusal to revoke the deportation order the Secretary of State relied on the nature and extent of the appellant's offending and the likelihood of his offending again in the future. She submitted that he had a long record of committing serious criminal offences, including an offence of robbery in the course of which the victim was threatened with a knife and had her mobile phone and purse stolen. In addition he had been convicted of supplying Class A drugs; it was said that on the day of his arrest the appellant had sold drugs to about forty people. The Secretary of State also relied on the appellant's pre-sentence report as evidence of what she said was the significant risk he posed to the community from future offending. The author of that report assessed the appellant's risk of re-offending as "medium", but said that it was likely to be reduced if he underwent a structured programme to improve his thinking skills and his awareness of the consequences of his behaviour.
19. DIJ Woodcraft accepted the Secretary of State's submissions. He rejected the appellant's evidence that he had benefited while in prison from being surrounded by "positive people", which he regarded as implausible. He observed that restrictions had been imposed on the appellant's activities by his bail conditions and by his supervision while on licence, implying that they explained the absence of convictions following his release from prison nearly two and a half years earlier. He expressed the view that neither his mother nor Ms Alexis had been able to exercise any positive influence over him to prevent his reoffending in the past and did not think that they would be able to do so in the future.
20. In deciding what approach to take to the appellant's offending DIJ Woodcraft appears to have been much influenced by the case of N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094, in which the appellant had been sentenced following a trial to 11 years' imprisonment in respect of offences of abduction, threats to kill, rape and false imprisonment. The appellant sought to draw a distinction between that case and the present on the basis that the offences in that case were much more serious that those he had committed. However, DIJ Woodcraft rejected that argument on the grounds that it was inappropriate to take what he described as "too fine an approach to the matter", dealing in Class A drugs being a very serious offence which can have an effect on the wider society. He recognised that the sentence passed on the appellant was relatively short for an offence of this kind, but observed that if the appellant had not pleaded guilty the judge would have passed a sentence of several years' imprisonment. Accordingly, the approach taken in N (Kenya) v Secretary of State for the Home Department applied to the present case.
21. It is difficult to resist the impression that in these paragraphs the judge was putting the worst complexion on the appellant's case. For example, he roundly rejected the appellant's assertion that he had encountered "positive people" during his time in custody, despite evidence from a prison officer and the prison chaplain that he had made constructive use of his time. A similar approach can be detected in relation to his history of offending. It is true that the appellant had previous convictions for robbery and shoplifting, but in each case he had received a non-custodial sentence. That is particularly noteworthy in the case of the robbery, since street robbery, particularly if it involves threats with a knife, usually attracts a custodial sentence. We have very little information about that offence, but to anyone familiar with sentencing for offences of that kind a community sentence suggests that it was very much at the lower end of the scale. Similarly, a sentence of 30 months' imprisonment following a guilty plea (the equivalent of 45 months' imprisonment after a trial) is at the lower end of sentences for supplying Class A drugs. It certainly suggests that the offence was not in the same category as those with which the court was concerned in N.
22. As to the prospects of further offending, the probation progress report written in September 2009 stated that the appellant showed clear signs of having made a positive change and assessed the likelihood of his committing further offences in the community as being low. On the face of it that was important evidence, because it gave an insight into the appellant's behaviour and attitudes over a year after he had been released from prison, but nowhere did the judge consider the implications of that report. Miss Chan submitted that DIJ Woodcraft must have had that information in mind, because he had mentioned the progress report as one of the documents put in evidence by the appellant, but in my view that is not sufficient. If a document contains important information, the tribunal ought to refer to it and consider its implications for the question under consideration. In the present case the judge did draw on the contents of the pre-sentence report, but he did not refer at all to the progress report which was a more recent document and one which could be expected to provide the most reliable evidence of the appellant's current attitudes. In my view the judge failed to have regard to that important piece of evidence, or if he did, he failed properly to assess its significance.

The Maslov principles

23. In Maslov v Austria [2009] INLR 47 the European Court of Human Rights considered the approach to be taken by national authorities when considering the deportation of a foreign national on the grounds that his presence constitutes a danger to the community. It was common ground that the effect of that decision, and of decisions in earlier cases (notably Boultif v Switzerland (2001) 33 EHRR 1179 and Üner v The Netherlands [2007] INLR 273), is that in assessing whether removal or deportation is proportionate the following factors are relevant (although their weight will vary according to the specific circumstances of the case):

(i) the nature and seriousness of the offence(s) committed by the appellant;

(ii) the length of the appellant's stay in the country;

(iii) the period of time that has elapsed since the offence was committed and the appellant's conduct during that period;

(iv) the nationalities of the persons concerned;

(v) the appellant's family situation;

(vi) whether any spouse or partner knew about the offence at the time he or she entered into the relationship;

(vii) whether the appellant has children, and if so, their ages;

(viii) the seriousness of the difficulties the spouse or partner is likely to encounter in the country to which the appellant is to be removed;

(ix) the best interests and wellbeing of any children;

(x) the strength of the social, cultural and family ties with the host country and the country to which removal is to be made.

24. Moreover, as the court pointed out in paragraphs 74 and 75 of its judgment in Maslov, it is necessary to have regard to the age at which the person came to this country and the extent to which he was brought up and educated here. In the case of a settled migrant who is lawfully present and has spent the major part of his childhood and youth in this country very serious reasons are required to justify removal. The appellant, of course, is not a lawful migrant, because attempts to regularise his immigration status came to nothing and were not subsequently pursued, but even in a case where the person is not lawfully present in this country, the fact that he has been here since childhood is still a weighty consideration: see JO (Uganda) v Secretary of State for the Home Department [2010] EWCA Civ 10 per Richards L.J. at paragraph 31.
25. DIJ Woodcraft did consider some of the factors which the court in Maslov identified as potentially relevant, in particular the appellant's relationships with Ms Alexis and Ashton (which in each case he found to be fragile), as well as the nature and seriousness of the appellant's offending, but in deciding whether it would be proportionate to remove the appellant he did not have regard to other important factors, such as the age at which he arrived in this country, the length of his stay and the strength of his social, cultural and family ties with this country. It is relevant, for example, that the appellant came to this country when he was 11 years old to join his mother, that he has lived here for 14 years throughout a formative period of his life, that he received the bulk of his education here and that his social contacts are all in this country.

Conclusion

26. I fully accept Miss Chan's submission that the decision must be read fairly as a whole, and I also accept that in the main DIJ Woodcraft directed himself correctly. However, for the reasons I have given I am satisfied that his decision is flawed in the respects I have identified to such an extent that it cannot be allowed to stand. I would therefore allow the appeal and remit the matter to the Upper Tribunal with a direction that there be a fresh hearing before a different constitution.

Lord Justice Hooper:

27. I agree.

Lord Justice Maurice Kay:

28. I also agree.