United Kingdom Asylum and Immigration Tribunal

M v Secretary of State for the Home Department Angola [2002] UKIAT TH43669031 (05 July 2004)

Appeal No. TH/43669/031

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 May 2004

Date Determination notified: 05 July 2004

Before
Mr M W Rapinet (Acting Vice President) Miss J Grimmett Mrs J Harris
Between

 

M	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the appellant : Mr P. Draycott, Counsel, instructed by oHowells Solicitors For the respondent : Mrs R. Giltrow, Home Office Presenting Officer
DETERMINATION AND REASONS
1. The appellant is a citizen of Angola and appeals by leave of the Tribunal against the determination of an Adjudicator, Mr J.P. McClure, dismissing his appeal against the decision of the Secretary of State on 24 March 2003, to deport him. He claims such a deportation would be in breach of Article 8 of the ECHR and that, being the spouse of a citizen of the Republic of Ireland, working in this country, and therefore a worker for the purposes of Article 39 of the Treaty of Rome 1950, Council Regulations 1612/68, that deportation would be contrary to his rights as the spouse of a worker within the European Union. The detailed and lengthy grounds of appeal are in the bundle before us.
2. It would be useful at this state to set out the history of the appellant.

(i) He entered the United Kingdom on 17 June 1996 and claimed asylum on that date.

(ii) That claim was refused on 26 November 1996 and the appellant appealed. His appeal was dismissed on 7 March 1997.

(iii) The appellant was due for deportation on 16 August 1998 but failed to attend the deportation.

(iv) On dates which are not clear the appellant was convicted of offences of driving whilst disqualified. He subsequently continued driving and was sentenced to a community service order in October 2002. He nevertheless continued to drive whilst disqualified and in July 2001 was sentenced to a period of two months imprisonment, and also sentenced for the offence of resisting a constable and obstructing a constable in the execution of his duty.

(v) The appellant was again arrested in January 2002 and was convicted in March of that year of a number of offences of obtaining property by deception and of obtaining money transfers by deception. The offences related to obtaining state benefits in the form of bank transfers and giro cheques, using fraudulent National Insurance numbers and other fraudulent documents. These fraudulent claims were made under three separate names and the total sum involved was in excess of £8000. This course of dishonesty ran for a period from September 2000 until November 2001. He was arrested for these offences in January 2002 and, following his trial in March of that year, he was sentenced on 14 May 2002 to a term of two years imprisonment.

(vi) On 18 September 2002 a notice of intention to remove the appellant was issued.

(vii) On 22 November 2002 he married ( ,) a British national.

(viii) Mrs Machado had been previously married and there were two children of that marriage, a boy named Kelly, now aged about fourteen, and another boy named James, now aged about sixteen.

(ix) ( ) previous marriage had clearly been unsuccessful and her husband had been imprisoned for offences of kidnap, rape and attempted murder in 1992 and is currently serving five life sentences.

(x) On 11 January 2003 the appellant made a claim under the Human Rights Act with particular reference to Article 8 and that claim was refused and an appeal was dismissed by an Adjudicator.

(xi) On 20 February 2003( ) became a citizen of the Irish Republic and on 6 March 2003 and obtained a residence permit as an Irish national which entitled her to reside within the United Kingdom. It would appear that Mrs Machado had never lived in the Irish Republic though it would appear that her parents come from that country. ( ) is a team leader in the catering section of the Northern General Hospital in Sheffield.

(xii) On 24 March 2003 the Secretary of State made a deportation order against the appellant dealing with the appellant's rights under the European Community law.

3. Mr Draycott has put before us a very helpful skeleton argument. It is not in dispute between the parties that this appeal is governed by Article 8 and Article 10 of Council Regulation of 1612/68. The latter states :

'The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one member state and who is employed in the territory of another member state:-

(a) His spouse and their descendants who are under the age of twenty-one or are dependent relations'

4. Article 1 of Council Directive 221 states:

'The provisions of this Directive shall apply to any national of a member state who resides in or travels to another member state of the Community, either in order to pursue an activity as an employed or self-employed person or as a recipient of services.'

5. Article 3 states:

(1) Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.

(2) Previous criminal convictions do not in themselves constitute grounds for the taking of such measures.'

6. It is not in dispute that( ) is a qualified person for the purposes of the Regulations, as is the appellant as her spouse.
7. Regulation 21(3) states that a person may be removed from the United Kingdom

'If he is the qualified person of a family member of such a person, that the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health.'

8. Regulation 23 sets out a framework under which such decisions shall be made and states:

'Decisions made on grounds of public policy, public security or public health (the relevant grounds) must be taken in accordance with the following principles:-

(c) A person's previous criminal convictions do not, in themselves, justify a decision on the grounds of public policy or public security,

and

(f) A person is to be informed of the grounds of public policy, or public security or public health upon which the decision taken in his case is based unless it would be contrary to the interests of national security to do so.'

9. Mr Draycott in his first submission maintained that the Secretary of State has failed to comply with the regulations in his letter setting out the reasons for deportation. That letter is dated 29 April 2003. Paragraph 3 is headed 'Decision' and contains four paragraphs. Paragraph 3.2 reads:

'The Secretary of State took into account the fact that the appellant had been convicted on three counts of obtaining property by deception and four counts of obtaining money transfers by deception and was sentenced to two years imprisonment. He also noted the appellant's other repetitive driving offences. He also noted the court had also recommended that a deportation order should be made in this case.'

10. Paragraph 3.3 reads:

'The appellant is the spouse of a European Economic Area National and as such could not be deported on the grounds that removal was conducive to the public good, except on the grounds of public security, public order or public health. Section 1(3)) of Immigration (European Economic Area) Regulation 2000 refers. Furthermore under this Regulation a decision to deport could not be made under Section 3(6) of the Immigration Act 1971 but only on the grounds of public policy, public security, public health or after ceasing to be a qualified person. The appellant was a spouse of a person who was exercising Treaty rights in the United Kingdom. The Secretary of State took into account the serious nature of the appellant's offence which he had committed and was satisfied that the appellant would pose a threat to the requirements of public policy if he was allowed to remain in the United Kingdom. He was therefore satisfied that the appellant's removal would be conducive to public good.'

11. Paragraph 3.4 reads:

'The Secretary of State could find no compassionate circumstances to outweigh the serious offence of which the appellant had been convicted. Accordingly, having considered all the relevant factors, including those set out in paragraph 364 of HC 395, the Secretary of State decided that it would be conducive to deport the appellant by virtue of Section 3(5)(a) of the Immigration Act 1971 and gave his removal to Angola (paragraphs 362, 363, 364, 375 and 385 of HC 395 and 21(3)(a) of the Immigration (European Economic Area) Regulation 2000).'

12. Mr Draycott submits that the Secretary of State has failed to observe Regulation 23 in that he has failed to disclose any grounds upon which deportation should be made other than those of the appellant's criminal convictions, and this would be contrary to Article 3 of Council Directive 64/221.
13. Mrs Giltrow submitted that the letter of 29 April 2003 does set out the whole of the basis upon which the decision has been made and drew our attention to paragraph 4 of that letter. Paragraph 4.2 reads:

'The Secretary of State considered the grounds of appeal. He noted that the appellant was now married to an Irish national and that the appellant had got married on 22 November 2000 after a deportation notice had been issued on 18 September 2002. He also noted that the appellant's wife was formerly a British citizen and had changed her status to that of an Irish national on 20 February 2003. As the appellant had got married knowing that he had been served with a deportation notice, and as his wife had become a European Economic Area national, which evoked the previous deportation notice and knowing that his appeal had been dismissed on 11 January 2003, the Secretary of State was of the opinion that his marriage appeared to be one of convenience in order to delay his deportation. This also placed in doubt whether the appellant could be classified as a spouse or a person who was a European Economic Area national as a spouse does not include a party to a marriage of convenience.'

We comment here that the word 'evoked' is probably a typographical error and should be 'revoked'.

14. In Mrs Giltrow's submission the letter has dealt with all relevant matters including the Article 8 claim which is dealt with at paragraph 4.1 of that letter.
15. We informed Mr Draycott that in our view there can be no doubt in the mind of the appellant and his advisers as to the issues behind the deportation order. These are set out in paragraphs 3 and 4 of the letter of 29 April 2003. That letter sets out the appellant's criminal convictions and the circumstances leading up to the claim before the Adjudicator that the appellant was the spouse of a European Economic Area National and, moreover, a person entitled to claim the protection of Article 8. The appellant has had the benefit of three hearings before three Adjudicators, one in relation to a claim for asylum, another in relation to a claim under Article 8 and the third in relation to his claim currently under appeal. These three hearings, coupled with the letter of refusal, lead us to the view that there can be no doubt whatsoever in the mind of the appellant or his advisors as to the issues considered by the Secretary of State's in reaching his decision to make a deportation order.
16. Mr Draycott went on to submit that the effect of the deportation was to negate the principles of family life as set out the case of Carpenter v SSHD [2003] 2WR 267. Paragraph 39 of that judgment reads:

'It is clear that the separation of Mr Carpenter and the applicant will be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom. That freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse.'

17. The previous paragraph reads:

'It should be remembered that the Community legislature has recognised the importance of ensuring the protection of the family life of nationals of members states in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty, as is particularly apparent from the provisions of Council Regulations and Directive on the Freedom of Movement of Employed and Self-employed Persons within the Community.'

18. Mr Draycott further relies upon the judgment of the European Court in the case of Gebhard v Consiglio del'Ordine [1996] CMLR 603. Paragraph 37 of that judgment:

'It follows, however, from the Court's case law that national measures liable to hinder or make less attractive the exercise of fundamental freedoms guaranteed by the Treaty must fulfil four conditions: they must by applied in a non-discriminatory manner; they must be justified by the imperative requirements of general interest; they must be suitable for securing the attainment of the objective which they pursue; they must not go beyond what is necessary in order to obtain it.'

19. Mr Draycott submits that the Secretary of State and the Adjudicator have relied exclusively on the appellant's criminal record in coming to the decision to deport. This is contrary to the regulations and contrary to the views expressed by the European court in the case of Gebhard and other cases contained in his bundle of documents. He submits that the claim under Article 8 has not been properly dealt with by the Secretary of State and the question of proportionality should be considered afresh. So far as the claim that this is a marriage of convenience is concerned, it would appear that this has been rejected by the Adjudicator. Mrs Giltrow informed us that she did not pursue this particular point.
20. Mr Draycott went on to submit that the Secretary of State's decision to deport pursuant to public policy was wrong and the Adjudicator had erred in law in failing to apply the principles set out by European law in relation to this issue. In particular, he refers to 'the concept of public policy presupposes the existence of a genuine and sufficiently serious threat to one of the fundamental interests of society'. This issue, submits Mr Draycott, has not been properly addressed by the Secretary of State or the Adjudicator. The Secretary of State and the Adjudicator have only addressed the other principles, namely 'The existence of a criminal conviction can justify expulsion only insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.'
21. It cannot be argued from the facts of this case, in Mr Draycott's submission, that the appellant's personal conduct poses a specific risk of new and serious prejudice to the requirements of public policy. He drew our attention to paragraphs 44 to 51 of the determination in which the Adjudicator sets out the matters which he has taken into account when arriving at his conclusion that the decision was justified under public policy and he submits that the Adjudicator has again placed too much emphasis upon criminal offences and has not given sufficient consideration to the report of the probation officer. The Adjudicator at paragraph 49 of the determination clearly states:

'I note that there is a letter from the support services that indicates that in their opinion the appellant is unlikely to commit further offences. However he has used several identities in the offences of criminal dishonesty and with regard to the disqualified driving offences.'

22. In Mr Draycott's submission this is not an adequate basis upon which to reject the probation officer's report. He points out that it is clear from that report that the appellant and his wife attended sessions with the probation officer.
23. It would be quite disproportionate for the Secretary of State to remove the appellant from the United Kingdom. He drew our attention to the recent decision of the European Court in Jakupovic v Austria [2004] 38 EHRR 27 where it was held that to deport a young man of sixteen who had been convicted of burglary, with a suspended sentence being handed down, would be contrary to his Article 8 rights. In conclusion, Mr Draycott drew our attention to the medical history of Mrs Machado and submitted that the Adjudicator's determination in relation to the question of public policy and in particular in relation to Article 8 erred in that the question of proportionality had not been properly addressed.
24. He points out that the appellant has now been in this country for eight years.
25. Mrs Giltrow in her submissions accepted that the appellant has been in this country for eight years but points out that he went to ground immediately following the rejection of his asylum appeal in 1997 and his presence in this country did not come to the attention of the Home Office until 2002 when he was convicted of the fraud offences. If he had started a relationship with Mrs Machado in 2001, as is alleged, he took no steps to regularise his position. She submits that the Adjudicator has, in paragraphs 49 and 50, fully addressed the question of the probation officer's report and points out that the probation officer has indicated the view that the appellant is unlikely to commit further offences purely upon the basis of his statement to that effect made to him. As the Adjudicator rightly points out in paragraph 50, the various criminal offences had been committed at the time when he knew and had a relationship with the woman who subsequently become his wife. He offended during that relationship, which does not indicate any intention to reform, and the Adjudicator was entitled to take that view. If the appellant were to be deported, it is claimed that his wife would only be able to work part-time. This may well be the case but that would not deprive her of a position as a worker under the European Regulations. She points out that the right of a wife is a qualified right subject to the overriding right of the state to maintain an immigration policy and, in particular, if public policy demands it. She submits that the Adjudicator's decision is quite clear and the appellant had not in any way been prejudiced. All that is relevant has been dealt with by the Adjudicator, and the Article 8 claim has been fully dealt with by the Adjudicator in paragraph 54, and there is no reason why Mrs Machado should not return to Angola if necessary and she drew our attention to the case of M v SSHD [2003] IAT 00049.
26. Mr Draycott in a final submission maintains that there were insurmountable obstacles to the appellant's wife and family going to Angola, not least because of the fact that he had no relatives in Luanda. He drew our attention to the Human Rights Watch report in the bundle and the Position Paper of the UNHCR issued in October 2002 which states:

'As far as individuals originating from Luanda are concerned, we believe that they should only be returned if, firstly, this will not result in them living in a situation of internal displacement and, secondly, any family members residing there have been identified and notified.'

27. As Mr Draycott points out, the appellant no longer has any relatives in Luanda.
28. We will deal first with the question of whether or not the deportation order is justified under Article 3 of 64/221/EEC on the basis of public policy or public security. It is not disputed between the parties that the appellant's wife is a worker in this country and that therefore he has rights to remain as the spouse of a worker. Although the Secretary of State now does not pursue the original claim made in the letter of 29 April 2003 that the marriage is a marriage of convenience, nevertheless we consider that he would be entitled to take into account, as indeed the Adjudicator and the Tribunal is entitled to take into account, the circumstances giving rise to this claim under the Regulations. In the case of Carpenter v Secretary of State to which we have been referred, the court states in paragraph 74 :

'Finally, the question of the risk of abuse should be considered, in particular the possible risk that national rules on residence concerning the legal position of spouses of nationals who are nationals of non-member countries could be evaded by the spouse who is a national being tempted to "create" a Community connection. Thus it may be argued that nationals of a member state might, for example, take up employment – even only for a short term – in another member state precisely in order thereby to "bring" themselves and the non-member country spouse within the scope of Community law. It might further be argued that the spouses who are nationals of non-member countries would thus be removed from the exclusive application of national law and would retain a legal position which might be more favourable than under national law, by thereby being given the possibly of residence based on Community law.'

29. It is to be noted in this case that the appellant entered this country illegally, made his claim to asylum, but did not attend the hearing of the asylum appeal, was not represented there and, upon an adverse decision being given by the Adjudicator, went to ground in 1997 and did not emerge until 2002 when he was convicted on criminal offences. During the intervening period he had developed a relationship with the woman who is now his wife and who he married after his conviction and the serving of a notice of intention to remove by the Secretary of State. He then pursued a claim under Article 8 which was dismissed, whereupon his wife then decided to taken Irish nationality, thus enabling him to establish the present claim under the European regulations. Whilst it may be that the marriage is a valid marriage and a bone fide one, the action of the wife in taking Irish nationality when she was already employed as a UK citizen in Sheffield, and continuing that employment after her change of nationality, must lead to some suspicion that this action on her part was merely to enable a third claim to remain in this country to be established.
30. The court in Carpenter made it clear that the rules are established in order that citizens of the various countries in the European Union may have a right to work within any country within that Union and that they have the right to be accompanied by their spouses. That is a perfectly valid object but if artificial situations are created by the citizens, this can only be an abuse of the Regulations; a situation which the court in Carpenter clearly deprecates.
31. We do not agree with Mr Draycott's submission that the Secretary of State has concentrated entirely upon the question of the appellant's criminal record when coming to his decision. The letter of 29 April 2003 sets out other matters which have been taken into account by the Secretary of State including compassionate circumstances, the Article 8 claim and the appellant's record which would include the fact that, following an adverse decision on his asylum claim, he went to ground. He started cohabiting with Mrs Machado prior to his convictions and, as Mrs Giltrow points out took no steps to regularise his status in this country, knowing at the time, as she must have known, that his status was that of an illegal entrant. He married her after he was convicted, made and had failed in an Article 8 claim, whereupon his wife changed her nationality which gave rise to a third claim to remain, the one currently under appeal. So far as public policy is concerned, the whole background and the attitude of the appellant towards regularising his position in this country must clearly be considered and in our view has been considered by the Secretary of State.
32. So far as the criminal convictions are concerned, it is argued that they are not of such seriousness as to warrant a decision based upon public policy to deport the appellant. The sum of £8000 may not be a considerable sum of money but the manner in which it was obtained shows clearly a deliberate policy of defrauding the government and the public from whose pockets come the social security benefits. These claims were made under no fewer than three false identities. Furthermore, and we think of some importance, is the fact that prior to this conviction, the appellant had been convicted of motoring offences and of violence towards a constable. The motoring offences may not of themselves be of great importance, being those of driving whilst prohibited from so doing, but the consequences of this apparent total disregard not only for court orders but for the law of the country, could be far reaching. The fact that the appellant has a conviction which precludes him from driving and then continues to drive, must mean that he was uninsured and, were he to commit such an offence again, he would still be uninsured. Were he to drive again against the prohibition and without insurance, and were he to have an accident which could result in serious injury to innocent members of the public, there could be no question of those injured being able to seek any financial redress because there would be no insurance company to pay upon a claim. It cannot seriously be contended that there would be any merit in pursuing a civil claim against the appellant. The appellant has behaved with wanton disregard for the laws of this country and has been convicted both in respect of the fraud and of the motoring offences and, so far as the motoring offences are concerned, has disregarded the court's orders.
33. It has been argued by Mr Draycott that the Adjudicator has not paid proper regard to the probation officer's report. We disagree. We consider that his statements in paragraphs 49 and 50 that 'However the appellant has used several identities in the offences of criminal dishonesty and with regard to the disqualified driving offences and that he has committed those offences at a time when he knew the lady was to become his wife' does take fully account of what the probation officer states. It is apparent that the appellant and his wife attended a session with the probation officer and gave an assurance to him that the appellant would hereafter lead a blameless life. The probation officer appears to have accepted that statement at its face value but the appellant's past record, in particular that of adapting several identities in relation to criminal activities does not fill one with any confidence that the assurance given to the probation officer is of much value. The probation officer accepted it at its face value without any evidence from psychiatrists or those who have been responsible for the appellant in the course of custody; the assurance given is worth nothing more than its face value.
34. Against this background, we are of the view that the Secretary of State's decision that the continued residence of the appellant in this country would be contrary to public policy and therefore to his obligations to maintain an immigration policy, was entirely justified.
35. Turning to the Article 8 claim, we would accept that a private and family life has been established in this country, as the Adjudicator has done. It is therefore a question of whether, in order to maintain a proper immigration policy, it would be disproportionate for the Secretary of State to deport the appellant. We bear in mind the cases of Razgar [2003] INLR 543, Edore [2003] INLR 361, Djali [2003] EWCA Civ 1371 and the recent determination of the Tribunal in the case of M [2004] UKIAT 00024 which established the principle that it is not within the powers of an Adjudicator to substitute his views for those of the Secretary of State, that the function of the Adjudicator and the Tribunal is only to consider whether the decision of the Secretary of State is one within a range of reasonable responses.
36. We would accept Mr Draycott's submissions that there are insurmountable obstacles to the appellant's wife and two stepsons joining him in Angola. The UNHCR letter, coupled with the objective evidence with regard to Angola which Mr Draycott has put before us, and the fact that the appellant had no family in that country, would, bearing in mind the ages of the two boys and the background of their mother, pose an insurmountable obstacle to them joining him in Angola.
37. However, we bear in mind the fact that Mrs Machado was fully aware of the precarious immigration status of her husband at the time she entered into a relationship with him and at the time she married him. Indeed, she must have been aware of the fact that he was in this country as an illegal immigrant at the time she entered into her relationship with him in 2001. She must have been aware of his convictions in relation to the motoring offences and she was certainly aware of his conviction for fraud at the time she married him. We accept that the existence of a deportation order would make it impossible for him to return to Angola and seek consent there to join her in this country as her spouse. But she is no longer a citizen of the United Kingdom. She is now a citizen of the Republic of Ireland and we cannot see that there is any insurmountable obstacle to the appellant returning to Angola and applying to join his wife in Ireland, of which country she is now a citizen. It is argued by Mr Draycott that this may mean that she would have to give up her work in Sheffield but we do not see that this an insurmountable obstacle. She has clearly had some experience in working in the hospital there. She has parents who are Irish and we cannot see why if she has a deep and lasting affection and relationship with her husband she could not take up employment in Ireland, continuing the work which she is doing in this country. Her sons are approaching university age and, if they wish to pursue further education, there are very adequate universities in Ireland to which they could seek entrance. We cannot see any insurmountable obstacle to this course of action being adopted. That removal will be a disruption cannot be doubted, but we do not think it is a disruption of such a nature as to bring the entire family life to an end. Medical evidence has been put before us by Mr Draycott with regard to Mrs Machado resulting from the unfortunate circumstances of her first marriage and we cannot see any reason why the medical attention as she requires cannot be made available to her in what is now her country of nationality.
38. Mr Draycott has drawn our attention to the recent Austrian case of Jakupovic. The circumstances of that case are quite different, apart from the fact that the decision of the court with regard to Article 8 was not a unanimous one. In that case the person involved was a sixteen year old with family in Austria. He had committed offences which had not warranted imprisonment. As the court stated in that case 'Very weighty reasons must be put forward to justify the expulsion of a young person, alone, to a country which has recently experienced armed conflict in all its adverse effects on living conditions and with no evidence of close relatives living there.' Of course, the appellant is far from being a young person. This is his third attempt to establish a right of residence in this country, the previous two having failed. The offences which he has committed are of a very much more serious nature than those committed by Mr Jakupovic, as has been the sentence imposed upon him.
39. The Adjudicator has clearly weighed up all relevant matters in considering the question of proportionality, including the circumstances set out in the determinations of previous Adjudicators which were before him, and comes to the conclusion that the deportation order 'insofar as it interferes with the appellant's and wife and children's right to family life is for the legitimate aim of maintaining the economic well being of the country and the prevention of disorder subject to international law'.
40. It is stated by Mr Draycott that the use of the expression 'economic well being' indicates that a decision is based upon economic rather than public policy grounds. This may be an unfortunate phrase, which probably reflects the sums lost to the public purse by the appellant's actions, but we are satisfied that this is not a matter which bore heavily upon the Adjudicator in reviewing the Secretary of State's decision. It is certainly not a matter which the Secretary of State set out as being in any way material to his decision as to public policy. Therefore, even ignoring the alternative of the appellant and his family living in the Republic of Ireland, we would nevertheless come to the conclusion that the decision of the Secretary of State was one within a reasonable range of responses and was proportionate.
41. For these reasons, therefore, we dismiss the appeal.
M.W. RAPINET ACTING VICE PRESIDENT