CW (Deportation – Huang – proportionality)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 07 June 2005 |
| Neutral Citation | [2005] UKIAT 110 |
| Court | Immigration Appeals Tribunal |
| Date | 07 June 2005 |
[2005] UKIAT 110
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Mr G Warr (Vice President)
His Honour Judge G Risius CB (Vice President)
For the Appellant: Mr M Bovey QC instructed by Wilson Terris & Co
For the Respondent: Mr J P Waite, instructed by Treasury Solicitor
CW (Deportation — Huang — proportionality) Jamaica
This is an appeal from the determination of an Adjudicator, Dr J J Morrow, sitting in Scotland, promulgated on 12 November 2003. He dismissed the Appellant's appeal against the decision of the Secretary of State on 2 May 2003 to make a Deportation Order. The appeal relied on Articles 3 and 8 ECHR.
The Appellant is a citizen of Jamaica born in 1972, who was given six months leave to enter the United Kingdom in 1994, and indefinite leave to remain in June 1995 on the basis of his marriage to a British citizen. He has two children from that marriage, born in 1994 and 1997. His mother and siblings remain in Jamaica.
In June 1997, the Appellant was convicted of rape, and sentenced to four years imprisonment, during which time his marriage broke down. He subsequently formed a new relationship in October 2001 with a medical student with whom he now lives. He has formed a relationship with his girlfriend's family, especially her mother and sister, whilst maintaining contact with his children and visiting them on alternate weekends. He also pays monthly maintenance for them. His divorce is under way.
In March 2003, he was convicted of being concerned in the supply of Class A drugs and was sentenced to four months imprisonment. The Sheriff recommended his deportation.
The Adjudicator rejected the Article 3 claim and there is no challenge to that. He rejected the Article 8 claim in these terms:
“I acknowledge the Appellant has established family life in this country, both with regard to his children whom he has regular contact with and his new relationship with [“S”]. I have also reached the conclusion that there would be an interference to the Appellant's family life if he were to be returned to Jamaica. However, bearing in mind all the information before me and in particular the Appellant's convictions and sentences for two serious matters, one involving sexual violence and the other involving a Class A drug, I have reached the conclusion that it is proportionate to the legitimate aims of the effective Immigration Control to return the Appellant to Jamaica. While recognising that there are family ties between the Appellant and his children and the Appellant and [“S”], weighing up this matter against the Appellant's criminal activity, bearing in mind the length of his sentences and the recommendation of the Sheriff in his drug offence case, the interference with the above relationships by the Appellant's return to Jamaica would be proportionate to the legitimate aims of Immigration Control. I have therefore reached the conclusion, based on the facts in this case as found above; the Appellant's rights under Article 8 are not breached. In the weighing up exercise that I am required to make, the Appellant's offences are simply too great with regard to that exercise when put alongside the evidence before me.”
The grounds of appeal pointed out that the Appellant had been found to enjoy family life here which his deportation would interfere with. It was said that the Adjudicator had ignored significant relevant evidence from a Social Enquiry Report writer to the effect that the Appellant represented a low risk of re-offending. The Adjudicator's conclusion about the gravity of the offence was unreasonable.
Permission to appeal was refused by the Tribunal but that decision was reversed by Lord Kingarth who said that it was arguable:
“(a) that it is for the Tribunal as an appellate body, empowered under the Nationality Immigration and Asylum Act 2002 to consider appeals on a point of law, to reach its own view as to whether — on the facts found by the adjudicator — the removal of the petitioner would as a matter of law be incompatible with his Convention rights, in particular under Article 8, and
(b) that in any event the decision of the adjudicator in relation to the question of proportionality was unreasonable, having regard in particular to the petitioner's relationship with his children. I am further satisfied that it cannot be said these arguments have no real prospect of success on appeal.”
The Tribunal originally intended to hear the appeal in mid 2004 but it was adjourned until after the Court of Appeal had decided the appeal in N (Kenya) [2004] UKIAT 00009, which we had been told was to consider the appropriate approach to proportionality following the decision of the House of Lords in Razgar [2004] 2 AC 36 In the end that issue was not decided in N (Kenya) and this appeal was further adjourned so that it could be considered in the light of the Court of Appeal's judgments in Huang and Others v SSHD [2005] EWCA Civ 105.
We recognise that that decision is not binding on us, as this is an appeal from an Adjudicator sitting in Scotland; it is of persuasive weight only. But as a Tribunal with a UK-wide jurisdiction, there is an obvious undesirability in the law governing its decisions varying with the location in the United Kingdom in which an Adjudicator had sat.
Mr Bovey QC for the Appellant made two principal submissions. First, the Adjudicator had erred in his identification of the legitimate aim in relation to which removal was said to be proportionate. That was not immigration control but the prevention of crime. Immigration control was an economic reason within Article 8(2); see Baroness Hale at paragraphs 44 to 54 of R (Razgar) v SSHD, [2004] 2AC 368. The Secretary of State had reached his decision based on the prevention of crime and could not now seek to support a decision of the Adjudicator which was based on a different case; Slivenko v Latvia paragraph 103 ECtHR 9.10.2003 48321/99.
Not merely did that make the assessment of proportionality in principle unsound, it had led to the Adjudicator failing to consider the true gravity of the offences and the importance of the risk of re-offending, including the specific evidence in this case. One could not just be substituted for the other as the Secretary of State suggested. Mr. Bovey pointed to the relatively modest sentence for the rape, the social enquiry report, and to the minor nature of the drugs offence which led to the recommendation for deportation. No significance should be attached to the Sheriff's recommendation for deportation because it did not have to be followed.
The later letter from the author of the social enquiry report afforded a basis for saying that there was evidence of a low risk of re-offending which needed to be addressed. The period of exclusion was also relevant. The Secretary of State's letter of 2 May 2003 containing the reasons for the decision to deport referred to disruption to family life being justified because of the “ convictions” (plural) but later said that the seriousness “ of your criminal offence” (singular) made removal necessary. The Secretary of State's argument to the Adjudicator had concentrated on the rape; the Adjudicator relied on both offences. The minor drugs offence seemed to be part of the thinking.
Second, the Adjudicator and the Tribunal had to decide whether the proposed deportation struck the right balance, ie a fair balance between the individual and the public interests. In so far as Huang at paragraph 61 endorsed the approach in Samaroo v SSHD [2002] INLR 55 in that respect it was correct; in so far as it adopted any other approach it was wrong and not binding in this appeal.
Mr Bovey later submitted that the correct approach to the balancing exercise for the decision-maker was however not that set out in Samaroo, but that in Boultif v Switzerland [2001] 33 EHRR 1179 which had superseded it. The Court of Appeal had not reconsidered Samaroo in the light of Boultif. Mr Bovey referred to paragraph 48 of Boultif which is as follows:
“48. The Court has only to a limited extent decided cases where the main obstacle to expulsion is the difficulties for the spouses to stay together and in particular for a spouse and/or children to live in the other's country of origin. It is therefore called upon to establish guiding principles in order to examine whether the measure was necessary in a democratic society.
In assessing the relevant criteria in such a case, the Court will consider the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he is going to be expelled; the time elapsed since the offence was committed as well as the applicant's conduct in 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; and whether there are children in the marriage, and if so, their age. Not least, the Court will also consider the seriousness of the difficulties which the spouse is likely to encounter in the country of origin, though the mere fact that a person might face certain difficulties in accompanying her or his spouse cannot in itself exclude an expulsion.”
Mr Bovey submitted that the destruction of established family live would rarely be proportionate in the case of someone who posed a limited future risk of detriment to the public good. Post Boultif, if it was unreasonable for the spouse to go with the deportee, he should not be deported. The Adjudicator had not dealt with these...
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