EO (Deportation appeals: scope and process)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 27 March 2007 |
| Neutral Citation | [2007] UKAIT 62 |
| Court | Asylum and Immigration Tribunal |
| Date | 27 March 2007 |
[2007] UKAIT 62
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Drabu
Senior Immigration Judge Grubb
For the Appellant: Ms N Mallick, instructed by Duncan Moghal
For the Respondent: Mr T Eicke, instructed by the Treasury Solicitor
EO (Deportation appeals: scope and process) Turkey
(1) The word ‘conferred’ in s84(1)(f) has to be read in some sense such as ‘confirmed’. (2) HC 1337 introduced a substantive change, not merely a change of emphasis or clarity, into paragraph 364 of the Immigration Rules. (3) Deportation decisions made before 20 July 2006 are made under, and on appeal are to be reviewed in accordance with, the ‘old’ version of paragraph 364; deportation decisions made on or after 20 July 2006 are made under, and are to be reviewed in accordance with, the ‘new’ version. (4) Decisions to make deportation orders and decisions to issue removal directions under s10 now need to be carefully distinguished. (5) In determining an appeal against a deportation decision made on ‘conducive’ grounds on or after 20 July 2006 the Tribunal should first confirm that the appellant is liable to deportation (either because the sentencing judge recommended deportation or because the Secretary of State has deemed deportation to be conducive to the public good); if so, secondly consider whether deportation would breach the appellant's rights under the Refugee Convention or the ECHR; if not, thirdly consider paragraph 364. (6) Paragraph 364 is only in issue if the appellant fails to establish a claim under either Convention; and if an appeal is to be allowed under paragraph 364 the Tribunal must identify the reasons, state why they amount to “exceptional circumstances”, and state why they are so strong that the appellant is able to establish that his own circumstances displace the public interest. (7) Removal decisions under s 10 (as distinct from deportation decisions) carry a wider right of appeal on the ground that the discretion should have been exercised differently, but, given the terms of s 92, that right can by no means always be exercised from within the UK. (8) In determining an appeal against a decision (whether before or after 20 July 2006) to give directions under s 10 (as distinct from directions for removal of an illegal entrant) the Tribunal should first consider whether the decision shows, by its terms, that the decision-maker took into account the factors set out in paragraph 395C and exercised a discretion on the basis of them. If it does not, the appeal should be allowed on the basis that it was not in accordance with the law and that the appellant awaits a lawful decision by the Secretary of State. If the decision was made properly, the Tribunal should secondly consider whether the removal of the appellant would breach his rights under the Refugee Convention or the ECHR, and, if not, thirdly whether the discretion under paragraph 395C should be exercised differently, bearing in mind that paragraph 395C does not have the restrictions contained in the ‘new’ paragraph 364. The process is somewhat similar to that under the ‘old’ paragraph 364.
The appellant is a citizen of Turkey, who arrived in the United Kingdom on 28 January 2004. He claimed asylum unsuccessfully, and subsequently, also unsuccessfully, applied to remain in the United Kingdom as a businessman. On 11 May 2005 in the Crown Court at Gloucester, on a plea of guilty, he was convicted on indictment of two charges of sexual assault on a female and on 2 August 2005 he was sentenced to a conditional discharge for two years, required to sign the Sex Offenders' Register for 2 years and he was recommended for deportation. On 23 January 2006 the Secretary of State decided to make a deportation order against him by virtue of s3(6) of the Immigration Act 197He appealed against that decision. A panel of the Asylum and Immigration Tribunal allowed his appeal. The Secretary of State sought and obtained an order for reconsideration. Thus the matter comes before us.
This appeal was listed (together with another, which was conceded by the Secretary of State) in order to enable the Tribunal to give guidance on the approach to paragraph 364 of the Statement of Changes in Immigration Rules, HC 395 following its amendment in July 2006, and on the scope of appeals against deportation decisions taken on the ground that the appellant's deportation would be conducive to the public good, with the advantage of submissions made by counsel for the Secretary of State who was fully instructed to deal with all relevant issues.
Section 3 of the Immigration Act 1971 is headed “General Provisions for Regulation and Control”. Subsections (5) and (6) as in force at all material times are as follows:
“(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.”
Section 5(1) is as follows:
“(1) Where a person is under 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.”
The rest of s5 relates to the procedure for deportation and contains provisions dealing specifically with those liable to deportation under s3(5)(b). Section 6 contains supplementary provisions relating to deportation under s3(6). Schedule 3 to the Act also contains provisions about deportation. We do not need to set them out.
Part 13 of the Immigration Rules relates to deportation and administrative removal under s10 of the 1999 Act. We are primarily concerned with paragraphs 363 and 36Paragraphs 363–363A summarise the circumstances in which a person becomes liable to deportation as follows:
“363. The circumstances in which a person is liable to deportation include:
(i) where the Secretary of State deems the person's deportation to be conducive to the public good;
(ii) where the person is the spouse or civil partner or child under 18 of a person ordered to be deported; and
(iii) where a court recommends deportation in the case of a person over the age of 17 who has been convicted of an offence punishable with imprisonment.
363A. Prior to 2 October 2000, a person would have been liable to deportation in certain circumstances in which he is now liable to administrative removal. These circumstances are listed in paragraph 395B below. However, such a person remains liable to deportation, rather than administrative removal where:
(i) a decision to make a deportation order against him was taken before 2 October 2000; or
(ii) the person has made a valid application under the Immigration (Regularisation Period for Overstayers) Regulations 2000.”
Before 20 July 2006, paragraph 364 was as follows:
“364. 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. … 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 person's behalf.”
From 20 July 2006 paragraph 364 was changed by HC 1337 so as to read as follows:
“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. 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. ….”
The omitted words in each version of paragraph 364 concern the transitional cases covered by paragraph 363A (above) and are not relevant for present purposes. The reference to paragraph...
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