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)
[APPEAL No: DA/00618/2011]

		Royal Courts of Justice Strand, London, WC2A 2LL
		30th January 2013

Lord Justice Laws:

1. This is an appeal with permission granted by Sir Stephen Sedley on 24 October 2012 against the decision of the Upper Tribunal (Upper Tribunal Judge Martin, Deputy Upper Tribunal Judge Alis) promulgated on 19 July 2012, setting aside the earlier decision of the First-tier Tribunal and dismissing the appellant's appeal against the Secretary of State's decision to deport him to Jamaica.
2. The appellant is a national of Jamaica born on 5 October 1988. He arrived in the United Kingdom with his mother and siblings on 2 August 1999 and obtained six months leave to enter as a visitor. On 10 May 2000 his mother applied for asylum for herself and her children as dependents. That was refused and her appeal dismissed.
3. The appellant has been granted no further leave to remain. Certainly he has no such leave now and is here unlawfully. He has a history of serious crime in the United Kingdom. The Upper Tribunal said this :

"3. On November 5^th, 2010 the appellant pleaded guilty to charges of possession with intent to supply Class A drugs namely cocaine and heroin, being concerned in the supply of a Class A drug crack cocaine and an allegation of failing to surrender to the court, when required. The Crown Court, sitting at Hull, imposed a 13 month prison sentence.

4. The sentencing judge commented:

'...All of these offences, in fact, originate from a period now in excess of two years ago, back to January 2008. The reason they are so old is because soon after you were arrested you chose to absent yourself and remain at large. You have more recently been arrested and you appeared here on the 5th November on this year, when you were sentenced to three months imprisonment in relation to a breach of bail...

The reality is that if you have been here with your co-accused on the occasions when you were meant to be here back in 2008, it is likely that the sentencing judge, His Honour Judge Mettyear, would have imposed similar penalties upon you as he imposed at that time on others."

4. I should also set out paragraphs 27 and 28 of the Upper Tribunal's decision:

"His offending behaviour began in 2003 and we noted he had the following convictions/reprimands/cautions:

03.12.2003 Possession of Cannabis Reprimand

10.12.2003 Possession of Cannabis Warning (given 16.04.04)

17.03.2006 Possession of Cannabis Referral Order (given 26.09.05)

Possession of Cocaine Supervision Order (given 02.10.06)

02.10.2006 Breach of Order No action taken (Dealt with on 17.10.06)

17.10.2006 Possession of Heroin Supervision order (given 12.01.07)

17.01.2008 Poss Cocaine w/i supply) 30 months imprisonment

Poss Heroin w/i supply) (given on 03.12.10)

17.01.2008 Concerned in supply)

Crack Cocaine

12.09.2008 Fail to appear Court 3 months imprisonment (given on 3.12.10)

It is apparent from his record that his offending behaviour began after he met Miss Wright and has continued throughout the course of their relationship. His offending behaviour has been continuous from 2003 and we noted that despite being given a warning on December 3, 2003 for possession of cannabis he committed a similar offence seven days later.

He first came to the Court's attention in September 2005 for a similar offence but within a few months of completing a referral order he then was back before the Courts for a similar offence and a more serious offence of possessing a Class A drug. He was placed on a 12 month supervision order on October 2, 2006 but within fifteen days of appearing in Court for sentence on those offences he was again arrested for possession [of] a Class A drug (heroin) and he was also sentenced for breaching the original Supervision Order. He was placed on a new twelve month Supervision order and he committed the current offences a week after the expiry of his order.

In considering his criminal history and response to orders we have noted that he told the original panel that throughout 2007 he was selling drugs to fund his own drug habit and to pay off a drug debt despite the fact he was on a community order.

His record and behaviour is relevant to the question of propensity to re-offend. Although we have taken on board Mr Selway's submissions that since his arrest in January 2008 he was not convicted of any further offence save failing to attend court his previous convictions and admissions to those in authority demonstrate his propensity to re-offend.

28. We have had regard to the pre-sentence report dated November 30, 2010. This report confirms that in January 2008 the Appellant admitted he was spending £150 a day on his crack cocaine habit."

5. The reference in paragraph 27 to Ms Wright is to the lady with whom the appellant has had a relationship since 2002. She is a British citizen. They have a daughter, Kianna, born on 5 May 2006; also a British citizen. The appellant spent a good deal of time during his child's very early life selling drugs in Hull away from home.
6. On these facts the appellant is and was a "foreign criminal" within the meaning of the United Kingdom Borders Act 2007. Accordingly by force of section 32(5) the Secretary of State was bound to make a deportation order against him unless, under section 33, his removal pursuant to such an order would breach his rights under the European Convention on Human Rights or the United Nations Refugee Convention.
7. On 27 July 2011 the Secretary of State made a deportation order. The appellant appealed. His appeal was allowed by the FTT (Immigration Judge Kelly and Ms S Singer) on 1 November 2011. On 10 November 2011 Designated Judge Wilson granted permission to appeal to the Secretary of State, stating :

"The Respondent grounds that the panel failed to adequately reflect their finding of the appellants expressions of remorse to be without foundation has merit as arguably this has to be carried through to a detailed consideration of what is in the best interests of the child which as the grounds set out are not immediately obvious."

8. That rather delphic pronouncement refers to the FTT's finding (paragraph 15) to the effect that the appellant's expressions of remorse were without foundation. This is what they said:

"The appellant obviously cannot at the same time be both contrite and in denial about the offences which have led to the respondent's decision to deport him. As Mr Hamid did not invite us to go behind the appellant's convictions for the index offences, we are bound to regard the appellant's expressions of remorse and his professed determination to reform as worthless."

9. Both the FTT and the Upper Tribunal referred to the judgement of the European Court of Human Rights in Uner v the Netherlands [2006] ECHR 873. There the court set out, relying on earlier jurisprudence (see for example Boultif v Switzerland (no. 54273/00, § 48, ECHR 2001-IX):

"...the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued."

The criteria were as follows :

"- 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 nationalities of the various persons concerned;

- the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;

- whether the spouse knew about the offence at the time when he or she entered into a family relationship;

- whether there are children of the marriage, and if so, their age; and

- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.

10. After setting out those matters, the court in Uner placed particular emphasis on the best interests or wellbeing of any children. The Upper Tribunal repeated the Uner criteria at paragraph 25. The FTT noted (paragraph 25) "the strong public interest in preventing drug dealing". But, on the other side, at paragraph 26 the FTT observed that the appellant had been in the United Kingdom since he was 11 and his relationship with Ms Wright had endured for eight years. They said (paragraph 26):

"In these circumstances, we do not consider it reasonable to expect her to follow the appellant to Jamaica, a step which would also mean depriving her daughter of the benefits of her British citizenship."

Then a sentence later:

"If deported, the appellant would be excluded from the United Kingdom for a period of 10 years following his removal. The appellant's deportation to Jamaica would therefore very likely spell a permanent end of this young family's life together."

The FTT's conclusion is in the next paragraph :

"27. Had the appellant been convicted of a serious violent or sexual crime -- or possibly a more serious offence of drug dealing than the length of the sentence of imprisonment would suggest was the case here -- then we would have had no hesitation in upholding a decision that would likely lead to the drastic consequence of permanent family division and break-down. As it is, we are not satisfied that he deportation in this case represents a fair balance between the public interest in preventing crime and disorder on the one hand and the familial interests of the appellant, his partner and their daughter on the other."

11. The Upper Tribunal, as I have indicated, allowed the Secretary of State's appeal. Before entering into a detailed disquisition upon the applicable law, they summarised their conclusion thus (at paragraph 14):

"Having considered the Representative's submissions we were satisfied that the panel had erred in its approach to the issue of proportionality. In particular, we found the findings on proportionality to be limited and the panel had not adequately considered what was in the best interests of the child as distinct from what the child, in an ideal world, may desire. The panel had also failed to adequately consider the 'risk of reoffending' when assessing public interest and we therefore set aside the panel's determination."

12. The Upper Tribunal proceeded to consider authorities including MK (best interest of child) India [2011] UKUT 00475. There the tribunal considered in some depth the task of assessing the best interests of a child in the context of a deportation or removal case. At paragraph 55 the Upper Tribunal in this case cited paragraphs 19 to 27 of the determination in MK. Consideration of the best interests question is not "a simplistic or reductionist exercise" (paragraph 21). It must always be "fact-sensitive".
13. Then the Upper Tribunal said this :

"We have considered Kianna's best interests in light of the known information and above case law. In normal circumstances we accept it is in the best interests of a child to live with and be brought up by both parents but this is not always possible. In assessing the best interests of Kianna regard has to be had to the Appellant's recent past and the effect his drug taking had or could have on her in the future.

57. Although Kianna was born in the middle of 2006 we are satisfied, based on the evidence before us, the Appellant spent significant parts of 2007, away from his daughter, in Hull selling drugs. Whilst he appears to have spent part of 2009 and most of 2010 with Kianna we are aware this only occurred after he failed to attend Court and he was on the run and being harboured by Miss Wright.

58. Since his detention Kianna is said to see her father around once a month. If the Appellant was to commit similar offences after his release (and we note the risk of offending in the OASys report) then consideration has to be given as to whether the Appellant would actually be there for Kianna and the effect his drug taking would have on the family itself. As there is no suggestion that Kianna and her mother would be required to live in Jamaica language, health and education do not raise concerns. The Appellant does not need to be in the UK for Kianna to receive any necessary medical treatment or her education."

14. At paragraph 59 the Upper Tribunal sets out a number of findings arrived at in light of the Uner criteria, ending with this:

"i. Although Kianna could benefit from having both parents with her we cannot overlook the damaging effect the appellant has had on her family life to date and the possible damage she could bring to the family, and others, if he does reoffend. The OASyS report describes the risk of reoffending as medium and in light of his previous offending history (offences committed every year between 2003 and 2008) we too share the concern over the risk of reoffending despite recent evidence of an improvement. It is clear the Appellant has told different people different stories in respect of his offending behaviour and his statement that he is motivated to stay out of trouble has to be looked at in that light and his admission that it was the threat of prison that made him revaluate his lifestyle."

Then the Upper Tribunal concludes:

"61. We have also considered other family life issues raised by the appellant and in particular the family life with his own family. His parents and siblings are all adults and while family life clearly can exist (Beoku Betts) there is no dependency on him by those family members or him on them. He appears to have flitted in and out of their lives as evidenced by the fact he left his mother and siblings in 2002 to go and live with his stepmother and girlfriend and he has now fallen out with his sister because she reported him to the police. The statements of evidence do not persuade us that removing him would be disproportionate.

62. Although the Appellant has spent a considerable amount of time in the UK we take into account that he is a young adult who has used his time in detention usefully. There is no country evidence before us to suggest that it would be unreasonable or unduly harsh to require him to return to Jamaica. He spent 11 years in Jamaica and did not find himself in any trouble but it is clear that since coming to the UK he has offended with regularity admitting that he had sold drugs even when he did not have a drug habit (see OASyS report).

63. We are satisfied that whilst removal would breach his family and private life such a removal would be proportionate having regard to the risk of reoffending and the danger to the public."

15. The appellant contends by Ms Brakaj, and Sir Stephen Sedley considered it at least arguable, that the FTT decision was not infected by any error of law. If that were right then of course the Upper Tribunal would have had no jurisdiction to deal with the matter.
16. The FTT's reasoning on the proportionality issue, not least its consideration of the interests of the child, is with respect extremely thin. In particular it does not address the impact on the child of the appellant's serious and persistent offending and the prospect or possibility of further offending. That there was such a risk is plain on the evidence. I have already cited paragraph 27 of the Upper Tribunal's decision. At paragraph 30 they said this:

"Whilst in custody he was further assessed and the results of that assessment are contained in the OASyS report dated March 15, 2011. There was a 40% risk of him reoffending within 12 months of his release and a 58% risk of him reoffending within 24 months of his release."

OASyS reports contain assessments by trained probation officers whose job it is to assess risk (see the observations of Pitchford LJ in AM (Turkey) [2012] EWCA Civ 1634 at paragraph 34).

17. The Upper Tribunal, by contrast with the FTT, expressly addressed the impact on Kianna of the appellant's drug offending and the possibility of further offences (at paragraphs 56-58 and 59(i) which I have set out). This must have been a major aspect of the issue relating to the child's best interests. The FTT did not confront it. They refer to the prospect of reoffending at paragraphs 15 and 24, as Sir Stephen Sedley noted; but it is wholly unclear what judgment they arrived at as regards the impact of this factor, if any, upon the best interests of the child. In contrast, in my judgment the Upper Tribunal's conclusions on the point are sensible, appropriate and evidence-based.
18. The second part of Ms Brakaj's submissions this morning was to the effect that the Upper Tribunal's decision was itself infected by error of law. I see no trace of that. For the reasons, I would dismiss the appeal. It seems to me altogether to lack merit.
19. I would add these remarks on the public interest in the deportation of criminals, as to which there is, I acknowledge, much learning. In Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 the Tribunal opined that there is presently no need for further authority on the public interest side of the balancing exercise. It is certainly plain that there is a strong public interest in removing foreign nationals convicted of serious offences, and not only lest they commit like offences in future:

"A further important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes."

(OH (Serbia) [2008] EWCA Civ 694 per Wilson LJ (as he then was) at paragraph 15)

20. Beyond this I think some emphasis needs to be placed on the automatic deportation provisions contained in section 32 of the 2007 Act. In MK (Gambia) [2010] UKUT 281 the tribunal stated:

"(1). In automatic deportations made under s.32 (5) of the UK Borders Act 2007 the respondent's executive responsibility for the public interest in determining whether deportation is conducive to the public good has been superseded by Parliament's assessment of where the public interest lies in relation to those deemed to be foreign criminals within s.32(1)-(3). In consequence the respondent's view of the public interest has no relevance to an automatic deportation.

(2) In such cases by virtue of s32(4) it is not open to an appellant to argue that his deportation is not conducive to the public good nor is it necessary for the respondent to argue that it is."

And in Gurung v SSHD [2012] EWCA Civ 62 this court said:

"The Borders Act by s.32 decides that the nature and seriousness of the offence, as measured by the sentence, do by themselves justify deportation unless an exception recognised by the Act itself applies."

21. What in my judgment needs emphasis is that the strong public interest in deporting foreign criminals is now not merely the policy of the Secretary of State but the judgment of Parliament. That gives it special weight, which the courts ought to recognise, as no doubt the Strasbourg court will. This approach sits with the well established approach to proportionality questions in European Union law where Acts of the primary legislator enjoy a wider margin of discretion (see R v Secretary of State for Health ex parte Eastside Cheese [1999] 3 CMLR 123 per Lord Bingham, especially at paragraph 48).
22. In this case, on the findings of the Upper Tribunal there are no Article 8 considerations remotely sufficient to displace Parliament's judgment.
23. I add for good measure that the appellant has in any event no trace of a right under the Immigration Laws to remain in the United Kingdom, which is why, correctly, the Upper Tribunal held that the important case of Maslov v Austria Application Number 1638/03 [2009] 1NLR 47 ECHR was of no assistance to him (see paragraph 24 of the Upper Tribunal's decision citing D v SSHD [2012] EWCA Civ 39 at paragraph 32).
24. For the reasons I have already given I would, as I have said, dismiss the appeal.

Lady Justice Hallett:

25. I agree and I would echo Laws LJ's final observations.

Lord Justice Rimer:

26. I also agree.

Order: Appeal dismissed