CW v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 07 June 2005 |
| Date | 07 June 2005 |
| Court | Asylum and Immigration Tribunal |
Immigration Appeal Tribunal
The Honourable Mr Justice Ouseley (President), Mr G Warr (Vice-President) and His Honour Judge G Risius CB (Vice-President)
Representation:
Mr M Bovey QC instructed by Wilson Terris & Co, for the Claimant;
Mr J P White instructed by the Treasury Solicitor, for the Respondent.
Cases referred to in the judgment:
CA v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 1165; [2004] Imm AR 640; [2004] INLR 453
Boultif v SwitzerlandHRC (2001) 33 EHRR 50
CM (DeportationArticle 8) Jamaica [2005] UKIAT 00103; [2005] Imm AR 397
Huang v Secretary of State for the Home Department; Abu-Qulbain v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
JN (DeportationConvictionPublic InterestProportionality) Kenya [2004] UKIAT 00009
MA (Fresh Evidence) Sri Lanka* [2004] UKIAT 00161; [2004] Imm AR 460; [2005] INLR 13
MB (HuangProportionalityBulletins) Croatia [2005] UKIAT 00092
Mokrani v FranceHRC (2005) 40 EHRR 5
N v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 1369; [2004] INLR 10
R (on the application of Daly) v Secretary of State for the Home DepartmentUNKELR [2001] UKHL 26; [2001] 2 AC 532
R (on the application of Razgar) v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
Samaroo v Secretary of State for the Home DepartmentUNK [2001] EWCA Civ 1139; [2002] INLR 55
Slivenko v LatviaHRC (2004) 39 EHRR 24
SS (ECOArticle 8) Malaysia* [2004] UKIAT 00091; [2004] Imm AR 153
Legislation judicially considered:
Human Rights Act 1998, s 6
Immigration Rules HC 395 (as amended), Rule 364
Human rights Article 8 of the ECHR deportation proportionality Huang
The Claimant, a citizen of Jamaica, had been given indefinite leave to remain in the United Kingdom in 1995 on the basis of his marriage to a British citizen. The couple had two children. In 1997 he was convicted of rape and sentenced to four years imprisonment, during which time his marriage broke down. He maintained contact with his children and paid monthly maintenance for them. Divorce proceedings were commenced.
In 2003 the Claimant was convicted in Scotland of offences relating to the supply of Class A drugs and sentenced to four months imprisonment. The Sheriff recommended deportation. The Secretary of State for the Home Department gave notice of a decision to make a deportation order. The Claimant's appeal to an Adjudicator was dismissed. He appealed to the Immigration Appeal Tribunal on the grounds that deportation would interfere with his family life under Article 8 of the ECHR, and that the Adjudicator's conclusion as to the gravity of the offence was unreasonable.
Held, allowing the appeal and remitting it for reconsideration:
(1) the Adjudicator failed to identify the appropriate public interest when considering whether deportation was proportionate, having regard to the compassionate circumstances of this case; the correct public interest was the prevention of crime rather than immigration control; proportionality could not be weighed correctly if the wrong public interest had been considered (paras 2526);
(2) the Adjudicator also failed to take into account the risk of re-offending and the potential period of exclusion, which might be of considerable importance in assessing the degree of disruption to family life and the corresponding degree of public interest in deportation (paras 29 and 32);
(3) in light of the decision of the Court of Appeal in Huang and Others v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105, and although the extant appeal was from Scotland, the correct approach to the issue of proportionality was as follows: the Immigration Rules HC 395 (as amended) and the extra-statutory policies of the Home Office were the starting point for the assessment of proportionality; when a particular case did not fall within the Immigration Rules or the extra-statutory policies, the legitimate public interest would normally favour removal; an Adjudicator could conclude that removal was disproportionate only in truly exceptional circumstances; Article 8 only applied to the specific rights it created and was not a general provision which justified overriding immigration controls or other legitimate interests on general compassionate grounds or as a result of the harshness of the removal (paras 38 and 48);
(4) in deportation cases, the Immigration Rules were generally wider in scope than Article 8 (paras 36 and 37);
(5) an Adjudicator's conclusion regarding proportionality was a decision on the facts and an assessment of degree; such a decision would be unlawful only if it involved an error of law; the fact that the Tribunal would have reached a different view of the facts or the assessment of degree did not constitute in itself an error of law or a breach of the Human Rights Act 1998 (paras 4142, 44 and 45).
Determination and Reasons
Mr Justice Ouseley, President
[1] 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.
[2] 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.
[3] 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.
[4] 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.
[5] 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.
[6] 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.
[7] 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 whetheron the facts found by the adjudicatorthe 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.
[8] 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 RazgarELR [2004] 2 AC 368. 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 SSHDUNK [2005] EWCA Civ 105.
[9] 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...
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