Application For Leave To Appeal By Cb Against A Decision Of The Asylum And Immigration Tribunal
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Carloway,Lord Mackay of Drumadoon |
| Neutral Citation | [2010] CSIH 89 |
| Published date | 12 November 2010 |
| Court | Court of Session |
| Date | 12 November 2010 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Carloway Lord Hardie Lord Mackay of Drumadoon | [2010] CSIH 89 OPINION OF THE COURT Delivered by LORD CARLOWAY in the application for leave to appeal by CB Applicant; against A decision of the Asylum and Immigration Tribunal _______ |
Alt: Lindsay; Solicitor to the Advocate General
12 November 2010The applicant arrived in the United Kingdom as a visitor on 30 December 1991. On 4 August 1993 he was granted indefinite leave to remain as the spouse of a United Kingdom national. His wife already had a female child of her own. She had a male child with the applicant. The applicant was convicted of one act of gross indecency and two of indecent assault over a three week period with his step-daughter, then aged 9. There had been an element of grooming and breach of trust in the offences and he was sentenced to four years in prison. When he was in prison, he was divorced. On 10 August 1998, as a consequence of the conviction, he was served with a notice of intention to deport on the grounds that his presence in the UK was not conducive to the public good. He appealed against that decision, but that appeal was dismissed on 22 May 2001. Exactly one year later, the deportation order was signed.
On 31 May 2002, the applicant's claim that the deportation order should not be enforced upon human rights grounds (Articles 3 and 8 of the European Convention on Human Rights) was refused by the Secretary of State for the Home Department (the respondent). An appeal against that decision was dismissed by an adjudicator on 20 March 2003. The Immigration Appeal Tribunal rejected an appeal from the adjudicator on 19 August 2004. However, on 5 April 2007, the court, of consent, remitted the case to the Asylum and Immigration Tribunal for a rehearing. The subsequent decision of the AIT, dated 17 July 2007, again rejecting the appeal was successfully appealed on 18 November 2008, but only in respect of the applicant's Article 8 rights and those of his two children by his present wife, born in October 2000 and December 2002. The present application is the latest episode in a prolonged legal process commenced on 31 May 2002, when the respondent refused the applicant's human rights claims.
At what was a complete rehearing of the Article 8 issue before the AIT, it was conceded that it would be unreasonable to expect the applicant's two children to relocate to his country of origin or to expect his wife to do so, leaving the children in the UK. Therefore, in answering the first four of Lord Bingham's five questions in R (on the application of Razgar) v Secretary of State for the Home Department [2004] 2 AC 368 (at para 17), the AIT held that:
1. the applicant's removal would be an interference with the applicant's exercise of his right to respect for his family life;
2. the consequences of that interference would be of such gravity as potentially to engage the operation of article 8;
3. the interference was in accordance with the law;
4. the interference was necessary in a democratic society in the interests of the prevention of crime.
Accordingly, the issue became a narrow one, in terms of the fifth question, of whether the interference was proportionate to the legitimate public end sought to be achieved.
Before the AIT, the applicant had attempted to introduce Article 6 unfairness in connection with whether the order had been in accordance with the law. The argument was that the respondent had not taken account of policy DP5/96 (Deportation in cases where there are Children with Long Residence), which dealt with cases where potential deportees had children "born here [and] are aged 7 or over". A statement from the respondent dated 24 February 1999 had created a general presumption against deportation in such circumstances, although it also stressed that each individual case would be considered on its merits. The policy did not apply to the applicant at the time of the deportation order in 2002, but it might have been applied by the respondent when the applicant's daughter reached the age of seven on 8 October 2007, before the concession was withdrawn on 9 December 2008.
The AIT rejected the argument, since it had not previously been raised by the applicant in any of the deportation proceedings. However, the AIT nevertheless accepted (para 12) that the factors referred to in the policy were relevant to the assessment of proportionality as were the criteria in the European Court of Human Rights cases of Boultiff v Switzerland (2001) 33 EHRR 50, Uner v Netherlands (2007) 45 EHRR 14 and Maslov v Austria [2009] INLR 47. Thus they specifically addressed proportionality in detail under various headings, viz:
"The nature and seriousness of the offences;
The duration of the appellant's stay in the United Kingdom
The time which has elapsed since... the offences and the appellant's conduct during that period
The nationalities of the various persons concerned
The appellant'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 offences at the time when she entered into a family relationship
Whether there are children of the marriage and if so their ages
The seriousness of the difficulties which the spouse is likely to encounter in the country to which the appellant is to be expelled
The best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the appellant are likely to encounter in the country to which the appellant is to be deported
The solidity of social, cultural and family ties with the host country and with the country of destination
The duration of the exclusion order".
The AIT took note of a number of particular facts under these headings. These included that the offences had been serious ones, although by no means the most serious, resulting in a total sentence of four years. On the other hand, the applicant had been in the UK for more than 18 years, albeit that his permission to do so ended in May 2002....
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