England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[Appeal No: DA/00201/2010]

		Royal Courts of Justice Strand, London, WC2A 2LL
		16th January 2013

Lord Justice Pill:

1. This is an application for permission to appeal. It is made by Mr Partheenpan, who is a citizen of Sri Lanka, and was born in 1976. He appeals against a decision of the Upper Tribunal of 24 January 2012. The case had previously been before the First-tier Tribunal on 28 July 2010. The appeals were against a decision of the Secretary of State on 15 January 2010 to make a deportation order against the applicant pursuant to section 32(5) of the United Kingdom Borders Act 2007. The applicant claimed first to have arrived in the United Kingdom in 1998. He claimed asylum during that year; that was refused, and he was served with Notice of Removal in 1998, but has remained in the United Kingdom since that time. He has, as Mr Fripp on his behalf has accepted, been here without leave, though, as Mr Fripp also asserts, not unlawfully.
2. There are two grounds of appeal against the decision of the Upper Tribunal. It is submitted that each of them merits the grant of permission and also that they do have some cumulative force. This is, of course, a second appeal, to which the appropriate test applies. The first ground, though understandably taken second by Mr Fripp, was that insufficient attention was given to the 13 years which the applicant had spent in the United Kingdom. It is, Mr Fripp submits, basically a reasons appeal that in its decision the Upper Tribunal has not given sufficient reasons for rejecting, when drawing the balance it was required to draw, the weight to be given to the length of time spent in the United Kingdom. Reliance is placed on the case of Uner v Netherlands [2006] ECHR 873. In that case, the ECHR stated that:

"the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be."

At paragraph 66 the Upper Tribunal referred to the "precarious basis of temporary admission". Reference is made to the withdrawal of permission to work and to the limited nature of the positive ties with the community which had been obtained during the period of residence. At paragraph 55 this factor was set out by the tribunal, which accepted that the applicant's private life:

"...has developed over the years, and is of a nature that will be interfered with. The Secretary of State accepts that he enjoys a private life in the UK."

3. The submission is that it is not clear from the reasoning of the tribunal what weight has been attached to that last material factor. At paragraph 77 the tribunal stated that the applicant had spent his formative years in Sri Lanka; his parents remain at home; he is still a young man, and the benefit of English language and experience will assist him in finding work back home and re-adapting to life there. This was a question of factual assessment. I accept that the reasoning could have been more specific, but in my judgment it far from achieves the status require for a second appeal.
4. Ground two relies on the conduct of the applicant following his conviction for a criminal offence. Mr Fripp refers to the decision of this court in JO (Uganda) [2010] EWCA Civ 10. In the course of his judgment, Richards LJ stated that there were two types of case, deportation and removal, and that they generally involve the pursuit of different aims:

"In deportation cases, it was the prevention of disorder and crime."

Following his arrest, the applicant decided to plead guilty to the charges against him, and what is more, he agreed to give evidence for the prosecution; a co-defendant was convicted. Bearing in mind the purpose of deportation, namely primarily the prevention of disorder or crime, Mr Fripp submits that that very much lessens the impact of the offence, and he submits that it was insufficiently taken into account by the Upper Tribunal. There is no doubt that the Upper Tribunal was well aware of the fact, and spelled out the conduct of the applicant in the course of the trial. The tribunal went on to say that the risk of committing a further offence had been assessed at "low to medium". If an offence were to be committed, the risk of harm to the public is "at a medium level". He has not committed further offences since his release from prison and that, said the tribunal, is a factor in his favour.

5. The tribunal, however, went on at paragraph 69 to consider the facts of the offence. I have been referred to the sentencing remarks of the judge. They fairly state that the applicant had pleaded guilty. The sentencing judge accepted that he was less involved than his co-accused, and had given evidence for the prosecution. That entitled him, the judge stated, to substantial credit, and his sentence was, as the judge put it, "limited to 12 months in prison".
6. I accept that whilst undoubtedly a mitigating factor and, as the sentencing judge recognised, a substantial one, nevertheless, as the Upper Tribunal pointed out, regard must be had to the nature of the offence or offences, and that is spelt out by the sentencing judge at an earlier stage. The case concerned a number of service stations in Hertfordshire and Hampshire. In one of them there had been a loss as a result of credit card fraud in a sum of over £50,000; in another, a sum of £6,000, with a potential loss of £4.5 million. At another service station the actual loss was £5,000, but the potential loss was over £500,000. The judge described this as:

"organised and sophisticated criminal activity, setting up electronic equipment, screens, photographs and log details in order to clone or skim a customer's credit card details. The potential for fraud was enormous and undermines public confidence in the use of their credit cards on a daily basis at outlets such as service stations or garages."

While the Upper Tribunal did not spell that out, it was plainly aware of those circumstances, and had them in mind when applying the test it was required to apply.

7. I repeat that I accept the applicant's meritorious conduct from a public point of view at court when charged was a factor which required to be taken into account when considering the order that had been made. I have found it impossible, however, notwithstanding the cogent submissions of Mr Fripp, to elevate the point he makes into a point requiring or entitling the applicant to a second appeal. Indeed, bearing in mind that the judge had regard to the nature of the offence and the conduct of the applicant, a first appeal would have been extremely difficult to sustain. This was, essentially, a matter for factual assessment. Other cases have arisen, and no doubt will arise, where the nature of the offence or offences committed, and the conduct of the applicant in relation to them, are material factors. There will be cases where argument turns on how serious the offence was. In my judgment, it cannot be elevated into an error of principle entitling a second appeal that the particular factor in this case to be considered was the guilty plea, and the giving of evidence for the Crown. The Upper Tribunal stated its conclusion at paragraph 78:

"In all the circumstances, for all the foregoing reasons, the Upper Tribunal finds that this was a case in which the respondent has shown, on balance, that the public interest in expulsion, for the prevention of crime and disorder and the economic wellbeing of the country, the maintenance of proper and effective immigration control, is a proportionate response in this particular case. It follows that the appeal is dismissed on human rights grounds."

Mr Fripp does not challenge the lawfulness of the second factor, the maintenance of immigration control, being taken into account, though he rightly submits that in deportation cases the emphasis should be on the factor of prevention of crime and disorder.

8. I see no real prospect of success, and in my judgment the test for a second appeal has not been met. This is a renewed application; it was refused on paper by Sir Stephen Sedley, stating:

"Even if the grounds disclose possible errors of law, they would be case-specific and not apt for a second appeal."

I agree with that conclusion. I share the view expressed by Sir Stephen Sedley, and notwithstanding the helpful and cogent submissions of Mr Fripp, this application must be refused.

Order: Application refused.