AT (Pakistan) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOOPER,LORD JUSTICE LAWS,LORD JUSTICE RIMER |
| Judgment Date | 26 May 2010 |
| Neutral Citation | [2010] EWCA Civ 567 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2009/2297 +C5/2010/0423 |
| Date | 26 May 2010 |
[2010] EWCA Civ 567
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Immigration Appeal Tribunal
Senior Immigration Judge Eshun
Senior Immigration Judge Ward
Before: Lord Justice Laws
Lord Justice Hooper
and
Lord Justice Rimer
Case No: C5/2009/2297 +C5/2010/0423
DA/003122009 + DA/00046/2009
Mr Zane Malik (instructed by Malik Law Chambers Solicitors) for the Appellants
Mr Robert Jay QC and Ms Marie Demetriou (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 23 March 2010
The appeals of AT and JK from decisions of the AIT have been heard together because they raise common issues concerning section 32 of the UK Borders Act 2007 (“the Act”) which received the Royal Assent on 30 October 2007 and which came into force on 1 August 2008. Section 32 is headed “Automatic deportation”.
By virtue of section 32(4): “For the purposes of s.3(5)(a) of the Immigration Act 1971 (c77) [set out below], the deportation of a foreign criminal is conducive to the public good” and by virtue of section 32(5) of the Act, “the Secretary of State must make a deportation order in respect of a foreign criminal …”. Section 33 contains exceptions to the duty to deport contained in section 32(5). These include, by virtue of subsection (2), where removal of the foreign criminal would breach (a) a person's rights under the European Convention of Human Rights (“the ECHR”) or the UK's obligations under the Refugee Convention.
By virtue of section 32 (1) and (2) the definition of a foreign criminal includes a person “who is not a British Citizen”, “who is convicted in the United Kingdom of an offence” and who “is sentenced to a period of imprisonment of at least 12 months”.
The first issue in these appeals may be expressed in this way: “Does section 32 apply to a person convicted after the passing of the Act on 30 October 2007, but before section 32 came into force on 1 August 2008?”
Both appellants were convicted during this period, in the case of AT for an offence of conspiracy to steal committed in the period September to December 2006 and in the case of JT for an offence of rape committed in the year 1989. AT was sentenced to 15 months’ imprisonment and JT to 5 years’ imprisonment.
Mr Malik for the appellants submits that the answer to the question is in the negative.
Section 59 includes the commencement provisions. By virtue of that section the Secretary of State is empowered to bring into force, amongst others sections, section 32 by statutory instrument and to make transitional provision. Sub-section (4) provides
In particular, transitional provision —
…
in the case of an order commencing section 32 –
(d) may provide for the section to apply to persons convicted before the passing of this Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement;
….
It is quite clear from this provision that Parliament intended that section 32 could apply to persons convicted before the passing of this Act who are in custody at the time of commencement or whose sentences are suspended at the time of commencement, if the Secretary of State so ordered. He did so order (subject to an exception), see the UK Borders Act (Commencement No. 3 and Transitional Provisions) Order 2008 SI 2008 No 1818, 8 July 2008.
Mr Malik submits that Parliament did not intend that section 32 applied to any person convicted after the passing of the Act and before it came into force. Such persons are, he submits, in a better position than those convicted before the passing of the Act. He relies on the absence of any provision specifically dealing with the category of persons convicted after the passing of the Act and before it came into force and to the use of the word “is” in the definition of foreign criminal, see paragraph 3 above.
That in my view is a quite hopeless argument. The inclusion of subsection (d) shows very clearly that Parliament intended that section 32 would apply to any person convicted after the passing of the Act and before it came into force, unless the Secretary of State by statutory instrument ordered otherwise, which he did not do. Parliament did not intend to put such persons in a better position than those convicted before the passing of the Act.
I should add that this issue was examined at greater length by Nicol J in Rashid Hussein v. Secretary of State for the Home Department [2009] EWHC 2492 (Admin). He reached the same conclusion that I have and I agree with him.
Mr Malik submits, in the alternative, that giving the Secretary of State the power to deport those who committed an offence before the Act came into force is a breach of the second sentence of Article 7(1) of the ECHR which provides:
No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
If deportation under section 32 of the 2007 Act is a “penalty” then it seems strongly arguable that there would be a breach of Article 7 if the Secretary of Sate were to order the deportation under the 2007 Act of a person who committed an offence before the coming into force of the Act. This is because, under the immigration law in force when the appellants committed the offences, deportation was discretionary whereas under the 2007 Act it can properly be described (as the heading to section 32 describes it) as automatic, unless removal of the foreign criminal would breach a person's rights under the ECHR or the UK's obligations under the Refugee Convention.
The discretionary nature of the power to deport under the Immigration Act 1971 is shown by the following provisions of the Act. Section 3(5) states that:
A person who is not a British citizen is liable to deportation from the United Kingdom if—(a) the Secretary of State deems his deportation to be conducive to the public good …
Section 3(6) of the 1971 Act provides:
Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.
Section 5(1) states:
Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given him before the order is made or while it is in force. (Emphasis added)
Is automatic deportation under the 2007 Act a “penalty” for the purposes of Article 7?
Mr Malik submits that it is, Mr Jay QC submits that it is not.
Mr Jay relies upon an opinion of the European Commission in Moustaquim v Belgium 12 October 1989. In that case it was argued that the order for the deportation of the applicant was in part based on acts committed by him before he had reached the age of criminal responsibility and that this violated Article 7. The Commission agreed unanimously that it did not, saying in paragraph 75:
This provision, however, which essentially outlaws the retrospective application of the criminal law, is not applicable in this case (see application no. 8988, decision of 10 March 1981, Decisions and Reports no. 24, p. 198). As the Conseil d'Etat observed in its judgment of 16 October 1985, the deportation order against the applicant does not constitute an additional penalty but a security measure. A measure of this kind taken in pursuance, not of the criminal law but of the law on aliens is not in itself penal in character.
Mr Malik relies on Welch v. UK Application no. 17440/90, 9 February 1995, 20 EHRR 247. In August 1988 the applicant was convicted of drug offences committed in 1986 before the coming into force...
To continue reading
Request your trial
-
Zulfiqar (‘Foreign Criminal’; British Citizen)
...[2016] EWCA Civ 999; [2017] Imm AR 319; [2017] INLR 681 AT (Pakistan) and JT (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 567; [2010] Imm AR 675; [2011] INLR 277 Akinvemi v Secretary of State for the Home Department (No. 2) [2019] EWCA Civ 2098; [2020] 1 WLR 1843;......
-
Upper Tribunal (Immigration and asylum chamber), 2015-11-03, [2015] UKUT 653 (IAC) (Terrelonge (para 399(b)))
...Assent on 30 October 2007. Section 32 came into force on 1 August 2008. In AT and another v Secretary of State for the Home Department [2010] EWCA Civ 567, the Court of Appeal held that s.32 applied to persons convicted in the period between the passing of the Act and its implementation. It......
-
Upper Tribunal (Immigration and asylum chamber), 2020-09-11, [2020] UKUT 312 (IAC) (Zulfiqar ('Foreign criminal'; British citizen))
...the contrary into the Court of Appeal’s approval of Nicol J’s judgment in AT (Pakistan) v. Secretary of State for the Home Department [2010] EWCA Civ 567, [2010] Imm. A.R. 675, at In this matter, as the appellant was convicted before the passing of the Act, was in custody at the time of the......
-
Upper Tribunal (Immigration and asylum chamber), 2014-12-23, DA/00024/2014
...a sentence or whose sentence was suspended. See section 59 of the Act and the decision of the Court of Appeal in AT (Pakistan) v SSHD [2010] EWCA Civ 567 at paragraphs 17. The chronology shows AG had been convicted of an offence of rape on 17th October 1985 and sentenced to four years youth......
-
‘A really hostile environment’: Adiaphorization, global policing and the crimmigration control system
...a punishment, a categorization that has been sup-ported by the courts. In AT (Pakistan) v Secretary of State for the Home Department [2010] EWCA Civ 567, the Court of Appeal rejected the argument that deportation amounted to a penalty and held that it was a measure taken in pursuance of the......