Am v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pitchford,Ward LJ |
| Judgment Date | 12 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1634 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2012/0148 |
| Date | 12 December 2012 |
[2012] EWCA Civ 1634
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Upper Tribunal (Asylum & Immigration Chamber) on 26 October 2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Ward
Lord Justice Elias
and
Lord Justice Pitchford
Case No: C5/2012/0148
Saad Saeed of Aman Solicitors, Solicitor Advocate for the Appellant
Lisa Busch (instructed by Treasury Solicitors) for the Respondent
Hearing date: 14 November 2012
The Secretary of State's decision
On 18 November 2010 the Secretary of State made a decision to deport the appellant ("AM"), a Turkish national, on the grounds that he was a "foreign criminal" within the meaning of section 32 UK Borders Act 2007 and that none of the exceptions created by section 33 applied; in particular, removal would not, under section 33(2) Exception 1, breach the appellant's Convention rights.
The Statutory Provisions
The statutory provisions which apply to the present appeal are as follows:
" 32. Automatic Deportation
(1) In this section "foreign criminal" means a person —
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) …..
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).
(6). …
(7) …
33. Exceptions
(1) Section 32(4) and (5) —
(a) do not apply where an exception in this section applies (subject to sub-section (7) below) and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth Citizens Irish Citizens Crew and other exceptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach —
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention.
. …
(7) The application of an exception —
(a) does not prevent the making of a deportation order;
(b) results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;
but section 32(4) applies despite the application of Exception 1 or 4."
Background
I take the factual background from the decision of the First Tier Tribunal ("FTT") promulgated on 9 May 2011. The appellant was born on 16 May 1969 and is now aged 43 years. He arrived in the United Kingdom from Turkey via Cyprus in December 1993 and claimed asylum, relying on his Kurdish background and alleged association with the PKK. That application was refused and the appeal was dismissed in 1995. In 1994 the appellant met his wife at a Kurdish community centre in London and they married on 26 May 1995. They have two sons born on 10 July 1999 and 24 February 2004, now aged 13 and 8 years respectively. On 5 April 2001 the appellant made further representations to the Secretary of State which were treated as a human rights application. The application was refused on 30 July 2001 but an appeal to the second adjudicator was allowed on 18 July 2003. On 15 October 2003 the appellant was granted discretionary leave to remain which expired on 15 October 2006. Thereafter the appellant enjoyed indefinite leave to remain.
On 25 February 2005, following a trial at Southwark Crown Court, the appellant was convicted with others of a drug trafficking offence. The circumstances, which I take from an OASyS report referred to in more detail at paragraphs 35 and 36 below, were that in August 2004 the appellant was employed as a mini-cab driver in London. He was offered work by an associate driving a Dutch national for three days. On the third day the appellant was requested to drive to an address in Bournemouth. When they arrived at their destination they were arrested and his passenger was found by the police to be in possession of 9.37 kilograms of heroin of high purity which he had collected from the address visited. The appellant was convicted of being knowingly concerned in carrying, removing, depositing, harbouring, keeping or concealing a class A drug. On 23 February 2005 the appellant was sentenced to 15 years imprisonment, later reduced on appeal to 12 years. In or about August 2008 the appellant was transferred to open conditions. On 6 August 2010 the custodial part of the appellant's sentence expired, but he was detained pending deportation until 19 August when he was released on bail.
The decision letter
On 23 November 2010 UK Border Agency notified the appellant that he was subject to automatic deportation as a foreign criminal pursuant to the terms of section 32 UK Borders Act 2007, because he had been sentenced to a period of imprisonment of not less than 12 months, unless he fell within one of the exceptions set out in section 33 of the Act. The Secretary of State accepted that the appellant had established a family life in the United Kingdom but concluded that his wife and two sons could reasonably accompany him to Turkey. The Secretary of State acknowledged her duty to recognise the interests of the appellant's children as a primary consideration but concluded that other factors outweighed those considerations. The letter informed the appellant that the decision to remove was in accordance with section 32(5) of the 2007 Act and the Agency's published policy in pursuit of the permissible aim "of the prevention of disorder and crime and the protection of health and morals and the protection of the rights and freedom of others". The Secretary of State took into account the personal and family circumstances of the appellant but resolved the issue of proportionality in favour of deportation since, she concluded, the appellant had spent his youth and formative years in Turkey and "it is not considered unreasonable to expect you to be able to readjust to life in Turkey". There was no reason why the appellant's spouse and children could not be expected to return to Turkey since "your concern for your own children did not deter you from committing the serious crime for which you received a long sentence of 12 years imprisonment".
The hearing before the FTT
The appellant relied before the FTT on witness statements from himself, his wife and two friends. The appellant and his wife were cross-examined on behalf of the Secretary of State. In its important respects that evidence was accepted [13]. Mrs M arrived in the United Kingdom to join her father in April 1992 as his dependent. Her father claimed asylum and the application was granted. In time, Mrs M became a British citizen and the two children who were born in the United Kingdom were also British citizens. From time to time Mrs M made visits to Turkey, for example for family funerals, and occasionally the two boys accompanied her. On one occasion she had, on account of her ethnic origin, been assaulted in the presence of the boys at the airport on arrival in Turkey. The tribunal found that the ties of both mother and children were, at the time of the hearing, predominantly with the United Kingdom and not with Turkey [3].
The appellant had been an industrious prisoner. He received no significant disciplinary adjudications. He undertook educational and other courses, and produced confirmatory certificates. Mrs M had qualified in the late 1990s as a pharmaceutical technician and worked in that capacity until, in about 2009, she developed chronic back pain and panic attacks. Regular contact was maintained between the family and the appellant while he was in prison. He was released on an electronic tag for periods of home leave. The older boy's school performance deteriorated but, once he was reunited with his father, it picked up again. Both children were doing well at school. The appellant was undertaking the bulk of household duties because his wife was not fit enough for heavier work. However, she provided some care for her own mother. The existence, duration and depth of family life were confirmed by a report from an expert independent social worker, Christine Brown, which was accepted by the tribunal. At paragraphs 6.6 and 6.7 of her conclusions Ms Brown said:
"6.6 … I have no doubt that both [children] are significantly and closely bonded to their father and that the impact of removal will be devastating for them. It is the children who will in essence be "punished" for their father's lack of status with enormous and enduring implications for all three family members but, most significantly and importantly the children who are not responsible for the situation that they unwillingly find themselves [in] at this time.
6.7 In this instance [the children's] needs are being met by their mother and father although this has been a precarious journey for this family. To remove [AM] would undermine this and place these children in a position which is the antithesis of good social work practice and what the Children Act 1989 sought to enshrine as essential elements required for positive child development and, what was the initial foundation for child care practices since this time, informing subsequent determinations including those of Lord Lamming's findings into the Climbie enquiry and more recently that of Baby Peter."
Notwithstanding these bonds of affection and dependence, the Tribunal was satisfied that, if the appellant was deported, neither his wife nor his sons...
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