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/00273/2011]

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th February 2013

Lord Justice Hughes

1. This appeal against the decision of the Upper Tribunal concerns the question whether the appellant's deportation as a foreign convicted prisoner is or is not proportionate despite its effect on his Article 8 rights. There are two issues in the appeal. Firstly, did the Immigration Judge apply the correct test pursuant to Maslov v Austria [2008] ECHR 546 given that the appellant has lived in the United Kingdom since he was a small child; and, secondly, did the Immigration Judge, or any antecedent immigration judge whose findings may somehow have been incorporated, err in taking into account two statements of police officers which recounted intelligence information received by the police suggesting unlawful (principally drug supply) activity by the appellant and association with firearms. The sources of that information were stated generally, although not entirely, to be informants unidentified, but with the kind of assessment of general reliability which such reports are generally given.
2. Sedley LJ granted leave to appeal on both these points, but highlighting in particular the second. Since then, the Secretary of State has considered the grounds and in effect concedes both of them so far as this individual appellant is concerned. She is content for two things to happen: first, for the case to be remitted to the Upper Tribunal for reconsideration there of the proportionality Article 8 question, applying Maslov v Austria: secondly, she is content that a direction be given by this court that the two police statements containing intelligence, namely the statement of Police Constables Pounder and Back at pages 145 to 152 of the principal bundle shall not be considered, either directly or indirectly, in that exercise.
3. That being the Secretary of State's stance, the question which arises this morning is limited to this. Given those concessions and the orders which this court will in consequence make, should this appeal nevertheless proceed here with, we understand, an estimate of about two days? The appellant contends that it should on the grounds that the second point formerly in issue (that is to say the intelligence reports point) is one of general importance. Ms Jegarajah submits that, whilst the Secretary of State may have made a concession in the present case, it does not follow that similar or comparable material may not be relied on in other cases, whether precisely the same kind of intelligence or of different kinds of intelligence.
4. The Secretary of State, for her part, contends that this would be an academic appeal and that there is no reason to hear it.
5. For my part I can see that it is possible that the proper approach to material of this kind might, in an appropriate case, justify further consideration in this court. There is in fact some law on the point, which was not before Sir Stephen Sedley when the application for permission was made, though it should have been. The Upper Tribunal delivered a substantial judgment on this point in March of last year in the case of Bah v SSHD (EO (Turkey) — liability to deport) [2012] UKUT 00196. Moreover an application in that case for permission to appeal against the determination of the Upper Tribunal was considered at some length by Richards LJ on 13 December of last year and he took the view that it was unarguable. Permission was refused. I do not overlook the fact that Ms Jegarajah would like in due course to submit that Bah is not directly relevant to the proportionality question under Article 8 but was considering intelligence reports at an antecedent stage in a non-foreign convicted criminal case. She might have some difficulty in demonstrating that the approach to evidence of this kind would be any different, but it is not for me at this stage to attempt to conclude that question.
6. Making in her favour the assumption that, despite the learning of Bah and the considered refusal of permission of Richards LJ, there may nevertheless be a point which needs resolution in this court one day, it does not follow that it is in the public interest for an appeal to proceed in the present case, and for my part I am entirely satisfied that it is positively against the public interest for it to do so. First, it would result in a decision which is obiter and thus susceptible to future challenge. Secondly, it would be founded on an extremely uncertain factual basis. There is considerable doubt about whether the intelligence reports in question in this case ever formed any part of any relevant tribunal decision.
7. It is not appropriate to take up time reciting the astonishingly complicated history of this relatively simple set of immigration proceedings. They have included several outings to the First-tier Tribunal, and to the Upper Tribunal, and to the Administrative Court on judicial review. They have included an extremely late tendered asylum claim, which arose only when the appellant was appeal rights exhausted in every other respect. The judgment of the First-tier Tribunal, which is in direct line to the present application, was principally concerned with the asylum question and not with the Article 8 question, though of course it dealt with it, and it dealt with the Article 8 question without the faintest sign of reference to the statements in question. The present case has, for whatever reason, already taken rather more than four years since the sentence which rendered the appellant liable to automatic deportation (subject only to the Article 8 question) was passed. It is high time that it was resolved one way or the other.
8. Next, as Ms Jegarajah realistically accepts, even if this appeal were now to be heard, as she asks it to be, on general and hypothetical grounds and even if she were to succeed in full, the present case would still have to be remitted to the Upper Tribunal for a decision on the proportionality issue according to Maslov. The further delay that would be involved in hearing an academic appeal in this case is entirely unjustified.
9. I would, for my part, rule that we should decline to entertain this appeal save to direct that the case be remitted to the Upper Tribunal for reconsideration upon Maslov grounds and without any consideration, directly or indirectly, of the statements of Constables Pounder and Back.

Lord Justice Aikens:

10. I agree.

Lord Justice Longmore:

11. I agree also. So there will be an order that the appeal be allowed, that the matter be remitted to the Upper Tribunal to the extent indicated in the Statement of Reasons and in the judgment of Hughes LJ and there will be no order as to costs.

Order: Appeal allowed