ON APPEAL FROM
THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DA / 00803 / 2009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
SIR STEPHEN SEDLEY
|Claimant / Respondent
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
||Defendant / Appellant
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Zane MALIK (instructed by Malik Law Chambers) for the Respondent
Hearing date: 13 December 2011
Crown Copyright ©
Sir Stephen Sedley:
The judgment which follows is the judgment of the court.
"On the night of 12 April 2008, therefore after the appellant had been in this country for only three years, he was involved in an extremely violent incident at Temple Pier in London which resulted in another man, another Nepalese, losing his life. What appears to have happened, drawing on the sentencing remarks of HHJ Pontius QC at the Central Criminal Court on 10 July 2009, is that the appellant and another man carried out a violent attack on a man, the deceased, called Bishal Gurung, following a chase from a boat. The sentencing judge described it in this way:
Wholly defenceless, he was quickly brought to the ground entirely incapable of any kind of retaliation, not only because of his drunken state but also because of sheer force of numbers. It is only a matter of good fortune at that stage that he did not suffer serious injuries.
The judge had earlier observed that all of the participants must have been drunk. He also, however, found that the appellant and his associates must have been well aware, despite their own drunken state, that there was a real risk that Bishal Gurung would be hurt as a result of their reckless behaviour. What appears to have happened next is that three men including [Rocky Gurung], then picked up the insensible body of Bishal Gurung and threw it into the River Thames, as a result of which he lost his life. The jury convicted [Rocky Gurung] of both manslaughter and violent disorder. The judge imposed a sentence on [Rocky Gurung] of three years' imprisonment for manslaughter with a concurrent sentence of 12 months on the second count of violent disorder. In the course of his sentencing remarks the judge observed that this was:
wanton and inexcusable violence in public and thus undoubtedly deserving of punishment which serves an important deterrent purpose."
"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 (c 41) (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 (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).
(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.
"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 [viz the Home Secretary] 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 than 'to weigh' this feature."
"34. The effect of section 32 (1)-(3) of the UKBA must be that if a person meets the conditions which bring him within the definition "foreign criminal", then his deportation is deemed by statute to be conducive to the public good. I therefore agree with Sedley LJ's statement (when sitting in the Upper Tribunal) in SSHD v MK [ UKUT 281, #23] that what was in the field of "executive policy" (because it was for the SSHD to decide whether it was conducive to the public good to deport a foreign criminal) has now become "legislative policy". Parliament has stated that it is conducive to the public good to deport "foreign criminals". I also agree with Sedley LJ's statement, at  in the same Determination, that where a "foreign criminal" challenges a deportation order made by the SSHD under section 32 (5) of the UKBA, on the basis that his removal would infringe his ECHR rights and it would be disproportionate to deport him, it is not open to that person to argue that his deportation is not conducive to the public good, nor is it necessary for he SSHD to prove that it is. In such cases it will be so: see the proviso to section 33 (7) of the UKBA.
"37. But that still leaves open two questions: first, what weight is generally to be attached to those public interest factors in the proportionality exercise; is it the same or more than was accorded under the pre-UKBA regimes? Secondly, should any separate or additional weight be given to the SSHD's own judgment on the weight of those factors in a particular case, as expressed in his Decision Letter? Both questions were raised, but not answered, by Sedley LJ, sitting in the Upper Tribunal, in his judgment in SSHD v BK [ UKUT 328, #24]. The questions were also raised by this court in its recent decision in AP (Trinidad and Tobago) v SSHD [ EWCA Civ 551, #6, 41-4; 49]. In that case counsel for the SSHD had not argued that the effect of the 2007 Act was that greater weight had to be given to the public interest factors in cases where a "foreign criminal" resisted a deportation order on grounds that removal would infringe his Article 8 rights under the ECHR. Nor did counsel for the appellant (Mr Chirico) argue that he public interest factors in favour of deportation summarised in OH (Serbia) were now less important in such cases.
38. At  of his judgment in AP (Trinidad and Tobago) Carnwath LJ said:
" .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."
The Upper Tribunal's determination
" . we see no basis for rejecting that as genuine evidence of the dilemma that confronts a parent in these circumstamces. Although twenty, the son had got himself into difficulties and was clearly in need of guidance and support. It would be unreasonable to expect the father and the family to relocate en bloc to Nepal where they had sold their home in order to make their future life in the UK, simply because of the appellant's criminal conduct."
"In our judgment," the Tribunal continued at #36, "it is easier to justify a response of deterrence and the expression of public revulsion for very serious premeditated offences "
"38. This is a case to which the automatic deportation provisions have applied because a sentence of twelve months' imprisonment was imposed. Deportation is automatic save where a human rights' claim prevented it. Neither the trial judge nor the respondent has decided that deportation is the appropriate course in the public interest in the light of the particular circumstances of this offence. The crime is a serious one inevitably, but in our judgment was not of the degree of seriousness that required a severe sentence or a recommendation for deportation.
39. There is a danger in equating the kind of seriousness of offence needed to justify deportation irrespective of any likelihood of re-offending and the criteria for automatic deportation subject to human rights claims under the Borders Act. Where automatic deportation arises in a case where there is a family and private life to which respect is owed, the task of the Immigration Judge is to carefully assess the factors that are identified in the case of Maslov v Austria .."
"it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult."
This is not of course a form of prescriptive entitlement: it is intended to recognise that a country where the offender's formative years have been spent may have become his or her only home.
"(i) There was a clear judicial finding by an experienced criminal judge that the appellant can be expected not to cause future disorder or engage in further criminal activities. No material has been identified that might undermine that conclusion, and so the ultimate aim of justification of the interference has not been made out.
(ii) The appellant is a young adult who has not yet founded a family life of his own.
(iii) The nature and seriousness of the offence are not such as to justify interference with family and private life alone, irrespective of the threat to the public interest that the appellant's future conduct might create.
(iv) The appellant has been present in the UK for 5 years. He entered as a child with the expectation of indefinite residence here, but has not lived here from an early age or most of his life as in the case of HK (Turkey or AW Khan v United Kingdom. As the Court of Appeal observe in JO (Uganda)  EWCA Civ 10 this is neither a necessary precondition nor determinative factor and each case must be assessed on its own merits. We observe that where there has been long residence as a child that can outweigh the public interest in deportation in even the most serious kind of offences, such as wounding with intent to cause grievous bodily harm, and dealing in Class A drugs.
(v) Two years have lapsed since the commission of the offence. The appellant remains in immigration detention, but nothing suggests that his conduct would threaten public safety if released. His family are concerned for him and would accept him back to support him and his father is anxious that he develops the self discipline and maturity to prevent conduct that puts him in situations of public disorder in the future.
(vi) All the appellant's immediate and closest family members are in the United Kingdom. He has no house, home, family or social support network to turn to in Nepal.
(vii) The appellant's crime was committed at age 20 as a young adult rather than a juvenile. Even for those committing offences over the age of 18, youth remains one of the most powerful mitigating factors in criminal sentencing policy and it is also a considerable factor in the assessment of justification of interference with family and private life in the public interest."
"42. Three years after his entry to the UK the young man was party to an act of disorder with another that had unintended tragic consequences. Deportation has a significant impact upon his relations with his family with whom he expected to continue his life in the same jurisdiction when he moved with them as a child from Nepal to the UK. The offence is wholly out of character and the judicial assessment is that he will be unlikely to ever appear before the criminal courts again.
43. The regime of automatic deportation where it has impact upon the family or private life of those lawfully resident here and deserves respect requires a very careful consideration of the seriousness of the offence and the extent to which the deportation can be said to enhance public protection on the one had and the impact upon private and family life on the other.
44. We conclude on all the evidence in the case that deportation of this young man for this offending with the serious consequences it would have for him and his family is disproportionate. It is therefore not necessary in a democratic society for one of the reasons recognised by Article 8 (2). We conclude that the first exception to automatic deportation applies (s. 33 (2) (a) Borders Act 2007) and the respondent could not make the deportation order under appeal."