EO (Deportation appeals: scope and process) Turkey; EO v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Toulson |
| Judgment Date | 16 May 2008 |
| Neutral Citation | [2008] EWCA Civ 671 |
| Docket Number | Case No: C5/2007/2019 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 2008 |
[2008] EWCA Civ 671
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Toulson
Case No: C5/2007/2019
[AIT No: IA/05151/2006]
Mr A Nicol Qc And Ms Nabila Mallik (instructed By Messrs Duncan Moghal) Appeared On Behalf Of The Appellant.
Mr T Eicke (instructed By The Treasury Solicitors) Appeared On Behalf Of The Respondent
The appellant is a citizen of Turkey. He was born on 5 September 1985. He entered the United Kingdom clandestinely on 28 January 2004 and claimed asylum. His appeal was refused on 4 February 2004 and an appeal against that refusal was dismissed on 6 April 2004.
On 24 September 2004 he was arrested on suspicion of having committed sexual assaults on two women, the first assault on 13 September and the second assault ten days later. He denied the accusations but was ultimately identified by both complainants on identification procedures. He entered not-guilty pleas and elected for trial at the Crown Court. On 11 May 2005 at Gloucester Crown Court he pleaded guilty to both offences. The case was adjourned for a pre-sentence report. On 2 August 2005 at Bristol Crown Court he was conditionally discharged for two years on each offence and recommended for deportation under the Immigration Act 1971 section 6.
There was no appeal against the recommendation for deportation. On 5 May 2006 he was arrested for immigration offences. On 23 May 2006 the Secretary of State made a decision to make a Deportation Order against him under section 5(1) of the 1971 Act by virtue of the fact that he was liable to deportation under section 3(6) of the Act, that is to say by reason of the court's recommendation that he be deported. The Secretary of State's reasons for the decision were shortly set out in an accompanying letter.
The appellant appealed against the decision under section 82 of the Nationality Immigration and Asylum Act 2002. The appeal was heard on 2 September 2006 and was allowed by the tribunal for reasons promulgated on 14 September 2006. The Secretary of State applied for reconsideration and this was ordered by a senior immigration judge who considered that the first tribunal may have made a material error of law in two respects, that is in its application of HC 1337 and in not applying the principles in N (Kenya) v SSHD [2004] EWCA Civ 1094.
The order for reconsideration on the first ground reflected the grounds on which the Secretary of State had initially sought reconsideration, but that ground was abandoned before the reconsideration hearing took place, as is apparent from the skeleton argument of Mr Eicke for the Secretary of State prepared for that hearing. It was rightly abandoned because HC 1337 did not take effect until 20 July 2006, after the decision of the Secretary of State which was under challenge. I will come later to the significance of N (Kenya).
The matter then came before a more senior panel of the AIT, which heard argument on 27 March 2007. Its determination, dated 26 June 2007, was that the first tribunal had materially erred in law and that the appellant's appeal against the Secretary of State's deportation decision should be dismissed. Against that determination the appellant now appeals. Mr Nicol QC contends that the second tribunal was wrong to find that the first tribunal had materially erred in law, and further, that if the second tribunal was entitled to consider afresh the question whether the appeal should be allowed or dismissed, its own approach in deciding that the appeal should be dismissed was flawed.
Although there is no essential dispute between the parties as to the relevant statutory structure and principles to be followed, it is convenient to set them out in order to understand the context in which the argument arises. Sections 3(5) and (6) of the 1971 Act provide:
“(5) 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; or
(b) another person to whose family he belongs is or has been ordered to be deported.]
(6) 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.”
The Crown Court is a court empowered by section 6 of the 1971 Act to make a recommendation under section 3(6) of the Act and such a recommendation forms part of the sentence for the purpose of being appealable to the Court of Appeal, Criminal Division. It is not part of the punishment so as to justify a reduction in the remainder of a sentence; R v Edgehill [1962] 47 Cr App R 41. The sentencing court has to decide first what sentence should be passed in order to reflect the gravity of the offence before considering separately the question whether to recommend deportation. Guidance on the use of the power to make such a recommendation was given by the Court of Appeal in R v Nazari [1980] 71 Cr App R 87. Lawton LJ said that the court is concerned with the question whether the defendant's continued presence in the United Kingdom is to its detriment and that:
“All a court does when it makes a recommendation for deportation is to indicate to the Secretary of State that in the opinion of the court it is to the detriment of this country that the accused should stay here.”
It is then for the Secretary of State to take a view whether the defendant's deportation to his country of origin would be unduly harsh.
There is no legal objection to making a recommendation for deportation in respect of an offender granted a conditional discharge for an offence which could have been punishable with imprisonment.
Section 5(1) of the 1971 Act provides:
“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.”
At the time with which we are concerned, the Secretary of State's general approach to the question whether to make such an order was stated in the Immigration Rules paragraph 364 as follows:
“Subject to paragraph 380 in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects.
In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the persons behalf.”
The Court's recommendation.
The first panel had the judge's sentencing remarks and the pre-sentence report and seemingly a summary of the evidence, which we do not have. From their reasons it appears that on each occasion the appellant approached the complainant from behind and touched her in the groin or buttocks area. To one of them he said he wanted to have sex with her. The complainants reacted as might be expected and he walked away. The first tribunal quoted the judge as saying in his sentencing remarks:
“I accept entirely that you have not committed the most serious of crimes and I accept entirely that you do not have a long criminal record. These are, in one sense, minor offences, but having said that they are two offences of indecent assault on women which clearly caused them considerable distress. They were, in my judgment, caused by you as a result of your loneliness, your emotional immaturity and your isolation from your family in Turkey.”
The pre-sentence report had recommended the appellant's attendance on a sex offender treatment programme, but he would not in practice have been available for such a program for two reasons. The first was that no such programme would be available for him until he reached the age of 21 and the second was that he did not speak good enough English.
In recommending deportation the judge expressed concern that the offences were very similar and had occurred within a short time of each other. He said:
“I think that there is a significant and serious risk were you to remain in this country, that you may commit a serious offence in the future and it is on that basis that I am making the...
To continue reading
Request your trial
-
R (Mirza and Others) v Secretary of State for the Home Department
... ... 1 There are before the court linked appeals against the decision of the Asylum and Immigration Tribunal ... (C.M.G.Ockleton D-P, SIJ Drabu and SIJ Grubb) in EO (Turkey) [2007] UKAIT 00062 , the headnote of which reads in ... During the course of argument relating to the scope of the right of appeal against deportation decisions, it ... 44. So far as the appellate process is concerned, two conclusions follow from it. The first is ... ...
-
Sajid Zulfiqar v Secretary of State for the Home Department
...of State for the Home Department [2009] EWCA Civ 544 Rix LJ referred to OH (Serbia) – together with N (Kenya) and EO (Turkey) [2008] EWCA Civ 671 – and said: “The public interest in deportation of those who commit serious crimes goes well beyond depriving the offender in question from the......
-
DA (Colombia) v Secretary of State for the Home Department
... ... (“the SSHD”) on 5 December 2007 to make a deportation order against him under section 5(1) of the Immigration Act ... The appeals ... 16 DA appealed to ... are actually two stages involved in the deportation process. The first concerns a non – British citizen becoming ... ...
-
BAH (EO (Turkey) - Liability to Deport); BAH v Secretary of State for the Home Department
...of Counsel, instructed by Howe & Co.Solicitors For the Respondent: Mr. S Singh, of Counsel, instructed by the Treasury Solicitor Bah ( EO (Turkey) — liability to deport) In a deportation appeal not falling within section 32 of the UK Borders Act 2007, the sequence of decision making set out......