England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/03/2010

MR JUSTICE FOSKETT :

1. The Claimant seeks to challenge the decision of the Secretary of State for the Home Department of 5 June 2009 certifying his human rights claim as "clearly unfounded" under sections 94(2) and (3) of the Nationality, Immigration and Asylum Act 2002 when his application to revoke a deportation order was also rejected.
2. He has a right of appeal under the 2002 Act against the rejection of his application to revoke the deportation order. If he succeeds in this judicial review claim he will have an in-country right of appeal. If he does not, he will have to leave the United Kingdom and exercise his right of appeal from Jamaica.
3. Permission to challenge the certification by the Secretary of State was initially refused on the papers by Her Honour Judge Swindells QC, sitting as a High Court Judge, by an order dated 18 August 2009 when she concluded that the claim was "totally without merit", but following an oral hearing on 9 October 2009 Keith J granted permission.
4. The Claimant is a Jamaican national born on 25 November 1985. He came to the United Kingdom when he was just 16 as a visitor in December 2001. He had apparently lived with his grandmother in Jamaica until then because of difficulties in his relationship with his parents. When he and his 14-year old cousin came to the UK together in 2001 they went to live with one of the Claimant's maternal aunts in London and after about a year they went to live with another maternal aunt in Clapham. His leave to remain was extended several times subsequently until 30 September 2004. Shortly before the expiration of that leave on 19 August 2004, when he was still only 18, he married FL, a British citizen. She was born on 6 June 1988 and was thus only 16 when they married. In consequence of the marriage he was granted leave to remain as a spouse until 31 December 2006. It is not disputed that the marriage was entered into with all appropriate permissions having been given.
5. In the month or so before his marriage he acquired the first of a number of criminal convictions. On 23 July 2004 he was convicted of possession of a Class A drug. Matters did not end there. On 2 March 2005 at Nottingham Magistrates Court he received a community punishment order of 60 hours for possessing a Class A drug. On 28 July 2005 at Kingston-Upon-Hull Crown Court, a community order of 2 years for possessing an imitation firearm in a public place. On 29 July 2005 at Nottingham Magistrates Court for resisting or obstructing a constable, for using a vehicle whilst uninsured and for driving whilst disqualified he received a concurrent community order for 2 years with various penalties in respect of the driving matters. It should be noted that none of those offences resulted in a custodial sentence.
6. On 10 December 2005 he was arrested for possessing drugs with intent to supply and possessing an offensive weapon. In due course, on 17 March 2006, he pleaded guilty to possessing a Class A drug (crack cocaine) with intent to supply and possessing an offensive weapon and was sentenced to 30 months in a Young Offenders' Institution. Drugs and £2,326 in cash were forfeited along with a knife and a machete.
7. Consequent upon that conviction and sentence on 17 August 2006 the Claimant was served with a decision to make a Deportation Order and a Deportation Order was signed on 24 August 2006. He pursued an appeal against this order and the appeal, which was heard on 24 November, was dismissed by the Asylum and Immigration Tribunal (the AIT), comprising an Immigration Judge and a lay member, on 4 December 2006. An application for a High Court review was refused shortly after this. However, this order was revoked on 24 January 2007 because it was recognised that he had outstanding appeal rights against the decision to make a Deportation Order when the order was made.
8. During 2007 he submitted an application for asylum. He attended an Asylum Screening Interview on 26 July 2007 and in due course he was notified in writing of the intention of the UKBA to exclude him from the protection of the Refugee Convention under section 72 of the Nationality, Immigration and Asylum Act 2002. Subsection (2) of section 72 provides that a person is presumed "to constitute a danger to the community of the United Kingdom" if he is convicted in the United Kingdom of an offence and sentenced to a period of imprisonment of at least two years. The presumption is rebuttable by the person concerned and the Claimant did indeed in due course make representations seeking to rebut the presumption.
9. He and his wife had a son on 4 March 2008
10. He underwent a full asylum interview on 21 October 2008.
11. His asylum application was refused in a letter dated 20 March 2009 and in the same decision letter the Secretary of State concluded that the presumption under section 72(2) had not been rebutted. The Claimant did not challenge that decision and on 21 May 2009 a new Deportation Order was signed.
12. In the meantime on 5 May 2009 the Claimant had submitted further representations to the Secretary of State drawing attention, amongst other things, to the family life he, his wife and child now enjoyed, effectively relying on Article 8 of the European Convention on Human Rights. These further representations were treated by the Secretary of State as an application to revoke the Deportation Order made on 21 May. In his oral argument on behalf of the Claimant, Mr Matondo Mukulu did foreshadow the possibility of amending his grounds to allege that the representations should not have been treated in this way, but (realistically, in my view) that course was not pursued. On 5 June 2009 that application (as it was treated) was refused and the Article 8 claim certified as "clearly unfounded" under s.94(2) of the 2002 Act. It is this decision to certify which is, as I have already indicated, the subject of the present application for judicial review.
13. The issue is whether the Secretary of State's conclusion that his human rights claim is "clearly unfounded" can be sustained.
14. For the purposes of the narrative, following that decision the Claimant was made the subject of a 12-month conditional discharge on 19 November 2009 for possession of a Class A drug and on 25 November 2009 he was fined £100 with costs for an offence of common assault. Those matters could not, of course, have been relied upon in the decision letter, but they have been deployed in support of the proposition that it adds to the case that the Article 8 claim is, in accordance with the approach to which I will refer in due course, unarguable.
15. A number of features of the decision letter need to be quoted. The immigration background was recited in detail and reference made to his various convictions and certain other matters. The following paragraphs are relevant for the purposes of the arguments advanced before me:

14. Most of the representations submitted in your letter dated 5 May 2009 have been previously considered at the appeal stage.

15. In your letter you state that your client and his spouse and children could not reasonably be expected to go to Jamaica and continue family life there.

16. You state that your client has no family in Jamaica and all of his family is here. It is noted that at your client's appeal decided on 4 December 2006 the adjudicator decided that "Regarding the strength of connections he has with the United Kingdom, we accept that his parents and siblings live in London. The relationship is tenuous. He does not get on with his parents (that is what he told Mr Smith)." It is not therefore considered that your client's strength of connections to the United Kingdom in terms of wider family members is any greater than those he has with Jamaica. Furthermore, it is noted that it was decided at your appeal that even though it was accepted that your removal to Jamaica would interfere with your Article 8 rights then this interference was justified and lawful under the immigration rules.

17. You further claim in your representations that your client's spouse would not voluntarily relinquish her domicile to live in Jamaica. The adjudicator previously considered this and determined that your client's spouse had accepted that there was no real impediment to her accompanying him to Jamaica. It was determined that any interference should your client's spouse choose not to go to Jamaica with him was justified and lawful under the immigration rules.

18. You further state that the applicant's spouse could not reasonably be expected to relocate to Jamaica as she has no reasonable prospects of obtaining employment there and would not be able to maintain herself to the standard to which she is presently accustomed. You state that Jamaica does not have a social services system. You state that your client has predictably poor prospects of finding employment in Jamaica. You state that as a result his wife and child will only be able to join your client in Jamaica if they are willing to live in exceptional hardship. Your client's spouse states that she has been promised by your client that he will obtain employment if he is allowed to remain in the United Kingdom. There is no reason why he could not take steps to obtain employment in Jamaica in order to support and provide for his family's needs. You state that medical services will be inaccessible to the family. However, it is known that the Jamaican health system offers primary, secondary and tertiary care. The Government also operates a National Health Insurance Programme (NHIP) which is a contributory health financing plan aimed at covering all residents of Jamaica for necessary medical services. It is designed to assist individuals and families in meeting the costs of health care without suffering financial distress and to provide dedicated resources for enhancing the availability and quality of health services. Treatments for a wide range of conditions including HIV/AIDS, cardiac disease and mental health are generally available in Jamaica. Furthermore, with regard to education for your child should you return to Jamaica the USSD report for 2007 noted "The Government was committed to improving children's welfare. The Ministry of Education, Youth and Culture is responsible for implementation of the government's programs for children. In January the government established an Office of the Children's Advocate. The office has broad responsibilities for reviewing laws, policies, practices, and government services affecting children; providing legal services and investigating complaints against government; and publishing reports and issuing best practice guidelines regarding any matter concerning the rights or best interests of children. Public primary education was free, universal and compulsory for students between the ages of six and 11, and the Ministry of Education reported that 99 percent of children in that age group were enrolled in school. However, economic circumstances obliged thousands of children to stay home to help with housework and avoid school fees. As a result, attendance rates at primary schools averaged 78 percent, although some rural areas reported attendance as low as 50 percent. Media reports indicated a higher percentage of female students continued their education and that males were much more likely to drop out. More than 70 percent of children between the ages of 12 and 16 had access to secondary school, and the UN Children's Fund reported that most children completed secondary education." It is therefore considered that your family would have access to medical help and education in Jamaica. It is not considered that the lack of a social security system in the country to which his spouse and child would have to relocate to in order to continue family life constitutes an insurmountable obstacle. In any event, it is noted that your client and his spouse married when they were both well aware of his immigration status and the potential consequences of his criminal actions. It is considered reasonable to expect your client's spouse and child to relocate with him to Jamaica to continue family life.

19. Consideration has also previously been given to the effect on your spouse and child if you are deported to Jamaica and they choose not to return with you. It is considered that you could maintain your relationship through modern means of communication, such as the telephone, email or the internet. They could also regularly visit you in Jamaica if they wished to do so. Furthermore, your son could decide to relocate to Jamaica to live with you once he reached an appropriate age once he had finished his education in the United Kingdom if he wished to do so. Whilst it is accepted that there will be interference in your spouse's and son's Article 8 rights if you are removed to Jamaica and they choose not to go with you, it is considered that this interference is in accordance with the law and is proportionate to the legitimate aims of maintaining effective immigration controls and protecting the public from crime.

20. You state that your client has now turned his life around and is a settled family man. However, it is noted that your client married in August 2004 and all his convictions happened following his marriage. You state that the public interest would not be adversely affected by allowing the applicant to remain and that, when balanced against the interests of your client and his family, his removal would be disproportionate and unlawful. However, this has already been considered by the adjudicator who concluded that, even when balanced against the interests of your client and his family, your client's removal was in accordance with the law and proportionate to the legitimate aims the United Kingdom's government.

16. It is essentially the reasoning, or aspects of the reasoning, in these paragraphs that are said on the Claimant's behalf to betray an approach that is irrational or unlawful and is susceptible to being quashed. One matter to which Mr Mukulu draws attention is, as he would suggest, the misplaced reliance on the "adjudicator's" (ie, the AIT's) assessment in December 2006 of matters of proportionality as being relevant to the issue for the Secretary of State.
17. Before turning to that and the other issues raised, the way in which statute demands that the Secretary of State should approach this issue should be noted although, as will appear in paragraph 20 below, the burden of proof on the issue is irrelevant. Section 94(2) and (3) of the 2002 Act provide that -

"(2) A person may not bring an appeal to which this section applies in reliance on section 92(4) if the Secretary of State certifies that the claim or claims mentioned in subsection (1) is or are clearly unfounded.

(3) If the Secretary of State is satisfied that an asylum claimant or human rights claimant is entitled to reside in a State listed in subsection (4) he shall certify the claim under subsection (2) unless satisfied that it is not clearly unfounded."

18. The list of States in section 94(4) includes Jamaica with the result that unless the Secretary of State was satisfied that the Claimant's human rights claim was not "clearly unfounded", he was obliged to certify it.
19. What does the expression "clearly unfounded" mean? In ZT (Kosovo) v Secretary of State for the Home Department[2009] 1 WLR 348 Lord Phillips of Worth Matravers, referring to what he had said as Master of the Rolls in R (L) v Secretary of State for the Home Department [2003] 1 WLR 1230, said this at paragraph 22:

The test of whether a claim is "clearly unfounded" is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof - in R (L) v Secretary of State for the Home Department ... I put the matter as follows:

"56. Section 115(1) empowers—but does not require—the Home Secretary to certify any claim 'which is clearly unfounded'. The test is an objective one: it depends not on the Home Secretary's view but upon a criterion which a court can readily re-apply once it has the materials which the Home Secretary had. A claim is either clearly unfounded or it is not.

57. How, if at all, does the test in section 115(6) differ in practice from this? It requires the Home Secretary to certify all claims from the listed states 'unless satisfied that the claim is not clearly unfounded'. It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision-maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.

58. Assuming that decision-makers - who are ordinarily at the level of executive officers - are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision-maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded. Miss Carss-Frisk for the Home Secretary has properly accepted that this is the correct approach."

20. Lord Phillips went on to say this at paragraph 23:

"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

21. Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury agreed specifically with Lord Phillips on this issue. As the quotation from Lord Phillips' speech indicates, "[if] on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded." Lord Brown of Eaton-under-Heywood said that "[if] the court concludes that an appeal to the [Asylum and Immigration Tribunal] might succeed, it must uphold the challenge and allow such an in-country appeal to be brought." Lord Neuberger of Abbotsbury said that "if, in a case where the primary facts are not in dispute, the court concludes that a claim is not "clearly unfounded" or (which is, of course, the same thing) that a claim has some "realistic prospect of success", it is hard to think of any circumstances where it would not quash the Secretary of State's decision to the contrary." Although Lord Hope and Lord Carswell took different approaches from the majority to the question whether rule 353 of the Immigration Rules applied in the case and whether there was any material difference between the "clearly unfounded" test in section 94 and the "realistic prospect of success" test in rule 353, their approach to the determining how the "clearly unfounded" test applied when it fell to be applied was similar to that of the majority.
22. Broadly speaking, therefore, I have to ask myself, including relevant factors and excluding irrelevant factors in the analysis, whether a " reasonable doubt exists as to whether [an appeal] may succeed", any appeal, of course, being based on Article 8 considerations. If such a doubt exists, I must quash the Secretary of State's decision to the contrary because the claim could not be "clearly unfounded". Mr Charles Banner, for the Secretary of State, submitted that the question I should ask myself in this case is whether, taking the decision of the AIT in 2006 as the starting-point (relying on Devaseelan v SSHD [2002] UKIAT 702), the Claimant's subsequent Article 8 representations have sufficient substance to give a realistic prospect of success? Whilst every case is fact-specific, and the question he poses is probably appropriate in the context of this case, it is obviously important that the way matters were articulated in ZT (Kosovo) should not be diluted at all. I propose to address the issue in the way I have indicated.
23. Before turning to the main arguments on each side of the debate on the issue I have to decide, in order to answer the question that lies at the heart of the debate it is necessary to understand how the "Article 8 considerations" as I have identified them must be approached.
24. Article 8, so far as material, is in the following terms:

"(1) Everyone has the right to respect for his private and family life …

(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, for the prevention of disorder or crime, for the protection of health and morals, or for the protection of the rights and freedoms of others."

25. Given that there is now a family unit comprising the Claimant, his wife and their son, it is clear that the "private life" of each member of that unit is relevant and that the effect on that unit "as a whole" of the effective exclusion of the Claimant is an important consideration when deciding whether that exclusion would be disproportionate: Beoku-Betts v Secretary of State for the Home Department[2009] 1 AC 115, the speeches in which were delivered on 25 June 2008 on the same day that the speeches were delivered in Chikwamba v Secretary of State for the Home Department [2008] 1 WLR 1420 and EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159. That is not in issue although, as Mr Mukulu submits, that approach was not one that would have been one that the AIT had specifically in mind when addressing the Article 8 case in November/December 2006. Then, of course, there was no child, but FL's rights were rights that needed to be addressed.
26. By the time of the relevant decision letter the approach set out in Beoku-Bettswas clearly established and paragraph 19 of the decision letter (quoted in paragraph 16 above) reflects the view formed on behalf of the Secretary of State in respect of this issue. What is said on the Claimant's behalf is that that view is wrong or, at least for present purposes, arguably wrong. The argument of the Secretary of State is that, taken against the background of the other factors in the case (principally, the Claimant's criminal record), it is not even arguably wrong.
27. Mr Mukulu and Mr Banner each drew my attention to VW (Uganda) and AB (Somalia) v Secretary of State for the Home Department [2009] EWCA Civ 5 and to ZT (Kosovo) v SSHD: see paragraph 20 above. I drew their attention to JO (Uganda), JT (Ivory Coast) v Secretary of State for the Home Department[2010] EWCA Civ 10 and invited their assistance as to its relevance or otherwise to the issues that fall for my determination. Both did make submissions about it. It is a case in which a large number of the domestic and Strasbourg authorities were considered in the context of the compatibility with Article 8 "of decisions to deport, on grounds of criminal offending, foreign nationals who have spent most of their childhood in the host country": per Richards LJ at paragraph 1. It cannot, of course, be said of the Claimant that he has spent most of his childhood here. He did, however, come to the UK in 2001 and has been here ever since. Any assistance to be drawn from the analysis in JO (Uganda)has to be seen in that context. The most relevant extract from the judgment of Sedley LJ in VW (Uganda) – paragraphs 19 and 24 – is helpfully quoted in the extensive extract from the judgment of LJ (with whom Mummery and Toulson LJJ agreed) set out in paragraph 28 below.
28. Richards LJ considered the domestic and Strasbourg authorities and drew a number of conclusions in the following paragraphs:

18 First, the cases to which I have referred are all concerned with the deportation, on grounds of criminal offending, of aliens who were otherwise lawfully present in the host country. [Maslov v Austria [2009] INLR 47] makes express reference to lawful presence (see para 75 of the judgment). In the other cases, it is either implicit or appears from the statement of facts.

19 The cases make clear that in considering whether deportation of such persons is proportionate to the legitimate aim of the prevention of disorder or crime, it is necessary to examine both family life and private life. The so-called Boultif criteria [see paragraph 29 below], as spelled out in [Üner v The Netherlands (2007) 45 EHRR 14], are applicable in principle in all cases, but only some of them will be relevant in practice where the person to be deported has not established family life in the host country.

20 As to private life, it is emphasised at para 59 of the Üner judgment that settled immigrants will, have ties with the community that constitute part of the concept of private life, which must therefore be considered even if the applicant has no family life in the host country. The importance of this can be seen from the discussion, at para 55 of the same judgment, of the Assembly's recommendation and the legislation enacted in some States to the effect that long-term immigrants cannot be expelled on the basis of their criminal record. The Strasbourg court rejected the concept of absolute protection, recognising that there is a balance to be struck under article 8; but the court has emphasised that it is a balance to be struck with a proper appreciation of the special situation of those who have been in the host country since childhood.

21 Where the person to be deported is a young adult who has not yet founded a family life of his own, the subset of criteria identified in para 71 of the Maslov judgment will be the relevant ones. Further, paras 72-75 of that judgment underline the importance of age in the analysis, including the age at which the offending occurred and the age at which the person came to the host country. This is pulled together in para 75: for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion; and this is all the more so where the person concerned committed the relevant offences as a juvenile.

22 There is only limited value in drawing comparisons with the outcome in other cases. All such cases are highly fact sensitive. The particular facts determine not only the conclusion but also the features picked out in the reasoning given in support of that conclusion. For example, the court said in Maslov that the decisive feature was the young age at which the applicant committed the offences, but it does not follow that the same feature will be decisive in all other cases where it exists.

23 It is also important to distinguish between the criteria themselves and phrases used in the course of applying them to particular facts. For example, I have already expressed the view that the court in [Onur v United Kingdom (2009) 49 EHRR 38], in stating that it would not be "impossible or exceptionally difficult" for the applicant or his partner to relocate to Turkey, was not laying down a general test but was simply considering the application of the relevant criteria to the particular facts (see [14]-[15] above).

24 That point ties in with recent judgments of the Court of Appeal which have stressed that in considering the position of family members in deportation cases as well as in removal cases the material question is not whether there is an "insuperable obstacle" to their following the applicant to the country of removal but whether they "cannot reasonably be expected" to follow him there. Thus, in VW (Uganda) and AB (Somalia) v Secretary of State for the Home Department ... Sedley LJ said this (referring to EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41):

"19. … But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts.

…

24. EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant …"

25 At the end of his judgment in AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240, itself a deportation case, Rix LJ, having referred to EB (Kosovo) and to VW (Uganda) and AB (Somalia), continued:

"42. … Albeit those cases all arose in the context of removals rather than deportations and did not raise the issue of proportionality against the background of the commission of a serious criminal offence, they each in their own way dethrone the significance of the test of 'insurmountable obstacles' or emphasise the importance of the test of whether it is reasonable to expect a spouse or child to depart with the family member being removed. The ultimate test remains that of proportionality …"

The relevant passages in VW (Uganda) and AB (Somalia) and in AF (Jamaica) were also referred to with apparent approval in DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544.

26 Concentration on whether family members can reasonably be expected to relocate with the applicant ensures that the seriousness of the difficulties which they are likely to encounter in the country to which the applicant is to be deported (the relevant criterion in the Strasbourg case-law) is properly assessed as a whole and is taken duly into account, together with all other relevant matters, in determining the proportionality of deportation. One must not limit the enquiry to whether there are "insurmountable obstacles" or whether (in the language of Onur) it is "impossible or exceptionally difficult" for the family to join the applicant: a broader assessment of the difficulties is called for. As it seems to me, however, the actual language used is not critical (and the Strasbourg court itself has used various expressions in describing the seriousness of the difficulties of relocation in individual cases), provided that it is clear that the matter has been looked at as a whole and that no limiting test has been applied.

27 It must also be borne in mind, of course, that even if the difficulties do make it unreasonable to expect family members to join the applicant in the country to which he is to be deported, that will not necessarily be a decisive feature in the overall assessment of proportionality. It is plainly an important consideration but it may not be determinative, since it is possible in a case of sufficiently serious offending that the factors in favour of deportation will be strong enough to render deportation proportionate even if does have the effect of severing established family relationships.

28 I have concentrated so far on deportation. Cases of ordinary administrative removal of persons unlawfully present in the country operate within the same legal framework and in my view require essentially the same approach. There, too, the essential question is whether, if expulsion would interfere with rights protected by article 8(1), such interference is proportionate to the legitimate aim pursued; and the answer to that question generally requires a judgment to be made on the basis of a careful and informed evaluation of the facts of the particular case.

29 There is, however, one material difference between the two types of case, in that they generally involve the pursuit of different legitimate aims: in deportation cases it is the prevention of disorder or crime, in ordinary removal cases it is the maintenance of effective immigration control. The difference in aim is potentially important because the factors in favour of expulsion are in my view capable of carrying greater weight in a deportation case than in a case of ordinary removal. The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise. Thus I think it perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. I stress "in principle", because the actual weight to be placed on the criminal offending must of course depend on the seriousness of the offences and the other circumstances of the case.

30 Where the person to be removed is a person unlawfully present in this country who has also committed criminal offences, the decision to remove him may pursue a double aim, namely the prevention of disorder or crime as well as the maintenance of effective immigration control. If that is the case, it should be made clear in the reasons for the decision, since it affects the way in which the criminal offending is factored into the analysis. Where the prevention of disorder or crime is an aim, the person's criminal offending can weigh positively in favour of removal, in the same way as in a deportation case. But if reliance is placed only on effective immigration control, it is difficult to see how the person's criminal offending would relate to that aim or, therefore, count as a factor positively favouring removal. On the other hand, it might still have a significant effect on the proportionality balance by reducing the weight to be placed on the person's family or private life: to take an obvious example, where a person has spent long periods in detention, his family ties and social ties are likely to be fewer or weaker than if he has been in the community throughout. Criminal offending can therefore remain relevant even if the maintenance of effective immigration control is the only aim of the removal decision; but careful account must be taken of how it bears on that decision.

31 The criteria in Üner are not directed in terms to an ordinary case of removal in pursuit of effective immigration control, but some of them have obvious relevance in that context too, both as regards family life and as regards private life. For example, what is said about ties arising from length of residence is obviously pertinent to an ordinary removal case: any difference in the extent or quality of ties established by a person present in this country unlawfully, as compared with those established by a lawfully settled immigrant, goes simply to weight. Similarly, the emphasis given to the position of a person who has been in the host country since childhood is relevant in the context of ordinary removal too. The first sentence of para 75 of the Maslov judgment ("for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion") does not apply in terms to the removal of a person who has spent his life in the host country unlawfully, but the fact that the person has been there since childhood is still a weighty consideration in the article 8 balancing exercise."

29. The Boultif criteria, used in order to assess whether an expulsion measure is necessary in a democratic society and proportionate to the legitimate aim pursued, are the criteria set out in the case of Boultif v Switzerland (2001) 33 EHRR 1179 and are 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.

30. It seems to me, as Mr Mukulu accepted, that paragraph 29 of the judgment of Richards LJ is particularly apposite in the circumstances of this case.
31. Mr Banner drew my attention to a number of cases decided in Strasbourg including Abdulaziz v. United Kingdom (1985) 7 EHRR 471 and Omoregie and Others v. Norway (App. No. 265/07, 31st October 2008). I propose to refer only to the recent case of Omoregie.
32. In Omoregie the applicants to the ECHR were a Nigerian national who was born in Sierra Leone in 1979, his Norwegian national wife who was born in 1977 and their daughter who was born on 20 September 2006. The first applicant lived in Nigeria from the age of 6 months until he arrived in Norway on 25 August 2001 (thus aged 22). He had been to university in Nigeria and had brothers there with whom he was still in contact. He arrived in Norway without passport or other identity document and applied for asylum. That application was rejected by the Directorate of Immigration on 22 May 2002. He appealed to the Immigration Appeals Board and, pending a decision of his appeal, he was granted a stay of execution of his expulsion and a temporary work permit. He had met the second applicant in October 2001, they had started cohabiting in March 2002 and became engaged on 10 September 2002. In September 2002 the Immigration Appeals Board rejected his appeal and he was told that he must leave Norway. On 1 October 2002 he requested the Board to stay his expulsion which the Board refused on 7 October 2002. No judicial appeal was lodged against these decisions which consequently became final. It was against that background that he and the second applicant married on 2 February 2003. That was in breach of the provisions on marriage which required lawful residence in the country. On 14 February 2003 he applied for a work permit on the ground of family reunification which was rejected on 26 April 2003 with a direction that he should leave the country with warnings as to expulsion in July 2003. Various appeal processes took place over the ensuing years and on 27 February 2006 the High Court in effect rejected his claim to stay. It was undisputed that his stay was unlawful from 30 September or 1 October 2002 until 14 February 2003 when he applied for family reunification and that he had worked unlawfully without a work permit for 9 months (from 30 September/1 October 2002 until early July 2003) when the Directorate of Immigration warned him about expulsion. Considering the Article 8 implications the High Court concluded that the applicant's stronger links with Nigeria than Norway meant that there would be no hardship in returning to Nigeria and, so far as the second applicant was concerned, at the time they married she must already have been aware of the uncertainty of the first applicant's stay in Norway. Furthermore, she was used to living abroad, having lived for several periods in South Africa. English was also the official language of Nigeria. In the view of the High Court, she would not face insurmountable problems by settling in Nigeria for a shorter or longer period, should she so wish. That was the position in February 2006 and on 14 June 2006 the Appeals Leave Committee of the Supreme Court refused the applicant leave to appeal, finding it obvious that the appeal had no prospects of success.
33. In the meantime, on 15 February 2005 the first applicant had submitted a new application for a work permit on the ground of family reunification with the second applicant. That was rejected on 21 July 2006. As I have indicated, a daughter was born to the first two applicants on 20 September 2006. On 31 October 2006 the Immigration Appeals Board rejected his appeal against the decision of 21 July 2006. The Board found that quashing the refusal of re-entry was not required in the interest of the third applicant, inter alia noting that the child had been conceived after a final expulsion order and referring to the circumstances of the entry into marriage. It would be possible, it was said, for the second and third applicants to live with the first applicant for shorter or longer periods in his home country. Although the fact that the first and second applicants had had a child together substantially altered the assessment of the proportionality of the prohibition of re-entry, the Board still did not find that the measure would be disproportionate. On 7 March 2007 the first applicant was expelled back to Nigeria.
34. By a majority (5:2) the European Court of Human Rights upheld the expulsion, concluding that the Article 8 rights of each applicant had not been infringed disproportionately. I will not extend this judgment further by referring to the reasons in detail. However, it was acknowledged that factors to be taken into account in this context are the extent to which family life is effectively ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them and whether there are factors of immigration control (for example, a history of breaches of immigration law) or considerations of public order weighing in favour of exclusion. Another important consideration, it was said, was whether family life was created at a time when the persons involved were aware that the immigration status of one of them was such that the persistence of that family life within the host State would from the outset be precarious. Where this is the case "the removal of the non-national family member would be incompatible with Article 8 only in exceptional circumstances", referring, inter alia, to Abdulaziz.
35. Mr Banner suggested that this case illustrates what he contends is the unarguable nature of the Claimant's Article 8 case. In that case there was, unlike this one, no persistent criminal offending giving rise to the considerations mentioned in paragraph 29 of the judgment of Richards LJ in JO (Uganda). However, I am not convinced that this kind of analysis helps in the task that confronts me. As Richards LJ also said, "[there] is only limited value in drawing comparisons with the outcome in other cases" because "[all] such cases are highly fact sensitive." It would be easy to make distinctions, both for and against the Claimant, by reference to any number of cases both in Strasbourg and within the domestic jurisdiction. But the short point for present purposes is that the decision is not mine. My decision is simply whether the present Article 8 claim is arguable within the approach of ZT (Kosovo) to the extent that it cannot be said to be "clearly unfounded".
36. So what are the points for and against the Article 8 case? There is no doubt that between August 2004 and December 2005 (when he committed the offence led to the sentence of detention in March 2006) the Claimant engaged in an escalating pattern of criminal conduct, much of it involving Class A drugs and some of it involving the possession of weapons. He was released from the sentence of detention on or about 21 December 2006. As the AIT commented in its decision of December 2006, the Claimant had shown "scant regard for the law since marrying [FL]" and it was something taken into account in reaching the decision arrived at when balancing the interests of the State as against his rights. The hearing before the AIT, of course, took place at a time when the Claimant was still in custody.
37. I will return to another aspect of the decision of the AIT shortly, because Mr Banner places reliance upon it, but the pattern of offending undoubtedly weighed heavily in the scales against the Claimant's position at that time. It was not just the offending in its own right, but the fact that it was committed against the background of an uncertain long-term immigration future in the United Kingdom that made is serious. That is one side of the coin. The other is that for very nearly three years (in other words, from the end of 2006 until about November 2009) he remained out of trouble. That he was involved with Class A drugs again then, and got himself involved in some degree of violence, is a matter that any decision-maker concerned with his right to stay in the United Kingdom would look at anxiously. However, for someone who had engaged in the pattern of offending to which I have already referred, a period of nearly three years is quite a period to remain out of trouble. Furthermore, he was not involved in dealing in serious drugs and neither offence merited a custodial sentence which is an indication of the view taken by the criminal court of the seriousness of each offence. Whilst, on any view, the commission of further offences is a disquieting aspect, given the lengthy period when there was no offending at all, it does seem to me possible for a decision-maker not to regard it as so serious as to weigh heavily against him. Even taking the decision of the AIT in December 2006 as the starting point, it does seem to me at least arguable that the Claimant had repaired a fair amount of the damage he had done to his position by staying out of trouble.
38. This period of non-offending coincided with his release from custody, the renewal of his daily contact with his wife and, in due course, the birth of his son.
39. At the time of the AIT hearing, the Claimant and his wife did not have their son. It appears from the 'Determination and Reasons' of the AIT that the Claimant's wife accepted that "there was no impediment to her accompanying [him] to Jamaica" and "no good reason why she cannot accompany him on his return to Jamaica" if the appeal failed. It seems clear that she made those concessions during the course of the hearing. She was 18 at the time and, as I have said, had not had the child who came along about 18 months later. Although Mr Banner places reliance on this (and, of course, he is entitled to point to it), it does not seem to me to amount to anything more than a recognition of the position at that time. I do not see how it could be argued realistically that in some way her acceptance then that she could go to Jamaica with the Claimant binds her or a future decision-maker to treat that as the position for all time. The arrival of the child plainly puts a different complexion on matters.
40. Mr Banner has argued strenuously that the birth of the child to this couple is not of itself a factor that necessarily makes a difference and that, as he put it, the acquisition of a wife and child does not on its own even create an arguable claim. I can well understand (and indeed I accept) that a "child of convenience" is no more persuasive in this overall context than a marriage of convenience. However, once a child exists, the child has its own Article 8 rights in the analysis of the overall Article 8 case advanced by his or her parent. That has been clear at least since the case of Beoku-Betts.
41. Mr Banner has suggested that something beyond the mere existence of a child is required to make a claim of this nature arguable. He suggested that there must be something in the situation that takes it out of the ordinary. Without being prescriptive, he submitted that there needs to be, for example, some medical condition on the part of the child, or something of that nature, that makes the retention of the family unit within the United Kingdom essential and its relocation to the destination of the person to be deported disproportionate. He draws attention, by way of example, to the fact that in VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5, where the Court of Appeal allowed an appeal against the decision of the AIT which would have had the effect of removing the mother of a 5/6 year old daughter to Uganda, there was evidence from a social worker concerning the effect that this would have had. Whilst I do not suggest that there may not be cases where evidence of this nature enhances the prospects of success, I am unable to accept that its absence in a case such as that with which I am concerned at this stage of the process impels the conclusion that an Article 8 claim is unarguable. As I observed during the argument, it would not require much evidence to support the proposition that the Claimant's son, who is now approaching 2, would be extremely upset if his father disappeared from the scene entirely having been there since his birth. That may not be determinative ultimately of this case, but I do not see how, at the stage I am being asked to address the issue, I should be persuaded that the absence of expert evidence to support the proposition, or indeed evidence of something out of the ordinary about the child's position, undermines the Article 8 case so significantly that it has to be characterized as "clearly unfounded".
42. It does seem to me that the family situation that has developed in this case is of itself something that renders the Article 8 claim arguable or, to borrow an expression from another area of law, not one that is necessarily "doomed to fail" if the ultimate issue, balancing all relevant factors, is, as it was held in VW (Uganda) to be, whether it is reasonable to expect the family to leave with the Claimant. The claim may indeed fail ultimately, but there is, to my mind, a reasonable doubt about that. Since that doubt exists, I must, in accordance with the established authorities, quash the Secretary of State's certificate.