QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
|- and -
|THE IMMIGRATION APPEAL TRIBUNAL
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Steven Kovats (instructed by Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Jack:
(1) S was not a party to the appeal (paragraphs 4 of the ruling); nor had S a right of appeal under section 65 (paragraph 6 of the ruling).
(2) S had no right to intervene in the appeal (paragraph 12).
(3) S had a right to contest the Secretary of State's decision to deport her mother on the ground that it was an infringement of her family rights and contrary to Article 8 of the European Convention on Human Rights by making a claim to that effect before the Administrative Court as provided by section 7 of the Human Rights Act 1998 (enlarged from paragraph 14).
(4) The appeal of AC under section 65 was to be determined by looking at the rights of AC to her family life under Article 8, and not by looking at S's human right to a family life. S's human rights did not require to be taken into account. This did not exclude evidence as to the mother/daughter relationship but that evidence would be examined in the light of AC's rights (paragraph 26).
'Preliminary ruling of the Immigration Appeal Tribunal refusing to take account …. [of] the impact of the claimant's removal from the United Kingdom on her daughter, [S].' Mr Blake submitted that, in deciding whether to make or to revoke a deportation order, the Secretary of State was bound to consider the effect of the proposed deportation on the human rights of both AC and of S. He submitted that as between AC and S there was a single family life and that they each had the same right to that family life. He submitted that, like the Secretary of State, the adjudicator and the Tribunal on an appeal under section 65 had to take account of the rights of both mother and daughter under article 8. He submitted that, in any event, they had to examine the impact on both mother and daughter if AC were to be deported to Turkey.
(1) On an appeal under section 65 the adjudicator and the Tribunal were concerned with the human rights of the appellant, here AC, and not with the human rights of any other family member, here S.
(2) There was a single family life between AC and S.
(3) It followed from (2) that the adjudicator and the Tribunal had to consider that family life and the potential impact of the proposed deportation on it, and hence its impact on both AC and on S.
(4) On the facts of this case it appeared that the rights of S under Article 8 were no different to those of her mother: they were two sides of one coin. It was stated in paragraph 42 of the grounds for contesting the claim: 'The importance to a mother of looking after her young daughter is the same as the importance to a young daughter of being looked after by her mother.'
(5) If the Tribunal had held in paragraph 26 of its ruling that it should not take account of the potential impact on S of the proposed deportation, he did not seek to uphold the Tribunal. He submitted that the Tribunal had not so held.
'26. For those reasons, which we have set out at much too great length, we conclude that [S] has, as such, no interest in presenting her human rights in this appeal. It follows that when this appeal is determined on the merits, we should be concerned, of course, with the circumstances of the family as a whole, but not by looking at [S's] right not to have her mother removed, if she is said to have such a right, but to look at the mother's rights. We shall be concerned whether it is right to say that the mother's removal infringes the mother's human rights as a whole – including any right to be with [S].
Then in paragraph 28:
'28. No doubt when the appeal is heard, there will be evidence about the daughter's position and the mother's relationship with the daughter as it was at the date of the decision. We emphasise that we are not seeking to exclude evidence of such matters, but in a case where it is not suggested that the removal of the mother is, of itself, something which is necessarily inhibited by the daughter's position, the daughter's human rights do not fall to be taken into account at all.'
(1) Was there 'family life' between the proposed deportee and another – here, between AC and S?
(2) Would the deportation be an interference with that family life?
(3) Was that interference in accordance with the law (in which was to be included European law as to applied as part of the law of England)?
(4) Was the deportation to be made for the purpose of the prevention of crime or for another reason mentioned in article 8?
(5) Was the decision to deport proportionate – that is to say, was it achieved by a proper balancing of the competing interests?
I have reached these five steps by combining Mr Blake's written argument and his oral submissions. They were generally acceptable to Mr Kovats. Without accepting them as a definitive statement, I accept them for the purpose of this judgment. It is the last issue, proportionality or the balancing exercise, which requires the Secretary of State (and appeal bodies) to balance against the factors favouring deportation the factors against deportation, in particular the interference with family life which the deportation may cause.
'25. I would therefore hold that in a case such as the present, where the legitimate aim [for example, the prevention of crime] cannot be achieved by alternative means less interfering with a Convention right, the task of the decision maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention rights on the other.'
No question arose as to any distinction between the effect of the proposed deportation on Mr Samaroo and effect on members of his family. The court appeared to accept that the decision maker should take account of the effect of deportation on the family as a whole: see paragraphs 4 and 10, 37 and 38. In paragraph 40 there is a reference to the rights of Mr Samaroo and his family under Article 8. The case is a leading authority on the approach to be adopted by the decision maker and upon the role of the court when subjecting the decision to judicial review. The court was not concerned with an appeal under section 65.
65(1) A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom, … acted in breach of his human rights may appeal to an adjudicator against that decision ….. .
(2) For the purposes of this Part –
(b) an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.
(3) Subsection (4) and (5) apply if, in proceedings before an adjudicator or the Immigration Appeal Tribunal on an appeal, a question arises as to whether an authority has, in taking any decision under the Immigration acts relating to the appellant's entitlement to enter or remain in the United Kingdom, …acted in breach of the appellant's human rights.
(4) The adjudicator, or the Tribunal, has jurisdiction to consider the question.
(5) If the adjudicator, or the tribunal, decides that the authority concerned –
(b) acted in breach of the appellant's human rights,
the appeal may be allowed … .
(7) "Authority" means –
(a) the Secretary of State;
(b), (c) … .
21(1) On an appeal to him under Part IV, an adjudicator must allow the appeal if he considers –
(a) that the decision or action against which the appeal is brought was not in accordance with the law or any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but must otherwise dismiss the appeal.
(2) Sub-paragraph (1) is subject to … any restriction on the grounds of appeal.
6(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
8.1 Everyone has a right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
'48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other's country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.
In assessing the criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled, the time elapsed since the offence was committed as well as the applicant's conduct in 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 of the offence at the time when he or she entered into a family relationship; and whether there are children in the marriage and if so, their age. Not least the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying his or her spouse cannot in itself exclude an expulsion.'
The Court concluded in paragraph that the wife could not be expected to follow her husband to Algeria. It then reached its determination as follows:
'The Court considers that the applicant has been subjected to a serious impediment to establish family life, since it is practically impossible for him to live his family life outside Switzerland. On the other hand, when the Swiss authorities decided to refuse his continuing stay in Switzerland, the applicant only presented a comparatively limited danger to public order. The Court is therefore of the opinion that the interference was not proportionate to the aim pursued.'
'35. In cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the country of origin of the person to be expelled, the guiding principles in order to examine whether the measure was necessary in a democratic society have been established by the Court as follows…. .'
Then followed a repetition of the second paragraph of paragraph 48 in Boultif quoted above. In paragraphs 39 to 41 of its judgment the Court considered the factual situation. It concluded that to live in Iran would cause the wife and children serious difficulties. There was also the child from the wife's former relationship, who was not prepared to move to Iran. The Court reached its determination as follows:
'43. Accordingly, as consequence of the applicant's permanent expulsion from Denmark the family will be separated, since it is de facto impossible for them to continue their family life outside Denmark.
44. In the light of the above elements, the Court considers that the expulsion of the applicant to Iran would be disproportionate to the aims pursued. The implementation of the expulsion would accordingly be in breach of Article 8 of the convention.'