EO (Deportation Appeals: Scope and Process) Turkey [Asylum and Immigration Tribunal]
| Jurisdiction | England & Wales |
| Judgment Date | 27 March 2007 |
| Date | 27 March 2007 |
| Court | Asylum and Immigration Tribunal |
Asylum and Immigration Tribunal
C M G Ockelton, Deputy President, Drabu SIJ and Grubb SIJ
Representation
Ms Nabila Mallick instructed by Duncan Moghal, for the Claimant;
Mr Tim Eicke instructed by the Treasury Solicitor, for the Secretary of State.
Cases referred to:
CM (DeportationArticle 8) Jamaica[2005] UKIAT 00103; [2005] Imm AR 397
CW (DeportationHuangproportionality) Jamaica[2005] UKIAT 00110; [2005] Imm AR 441; [2006] INLR 10
Legislation judicially considered:
Immigration Act 1971, ss 3(5) and (6), s 5(1)
Immigration and Asylum Act 1999, s 10
Immigration Rules HC 395 (as amended), paragraphs 364 and 395C
Nationality, Immigration and Asylum Act 2002, ss 84(1)(f), 86(3)(5) and (6)
Procedure and process deportation conducive deportation paragraph 364 of the Immigration Rules amended version presumption of public interest liability to deportation exceptional circumstances removal exercise of discretion
The Claimant, a citizen of Turkey, was refused asylum by the Secretary of State for the Home Department. The Claimant then applied to remain in the United Kingdom as a businessman but that application was also refused. The Claimant was later convicted on indictment of two charges of sexual assault. He was sentenced to a conditional discharge for two years, required to sign the Sex Offenders' Register for two years and was recommended for deportation. On 23 January 2006 the Secretary of State decided to make a deportation order against the Claimant. Before 20 July 2006, paragraph 364 of the Immigration Rules HC 395 (as amended) required the Secretary of State, in making a decision on whether deportation was the correct course of action, to balance the public interest in deportation against any compassionate circumstances of the case, taking into account all relevant factors known to him, including a list of issues expressly falling to be considered.* From 20 July 2006 paragraph 364 was amended with the effect that where a person was liable to deportation, there was a presumption that the public interest required deportation, and it would only be in exceptional circumstances that the public interest would be outweighed in a case not engaging the United Kingdom's obligations under the Refugee Convention or the ECHR. The Claimant appealed against the Secretary of State's decision to make a deportation order. A panel of the Asylum and Immigration Tribunal allowed the appeal. An order for reconsideration was made. A preliminary issue arose in respect of the wording of s 84(1)(f) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) which allowed an appeal to be brought on the ground that the person taking the decision should have exercised differently a discretion conferred by immigration rules. An ordinary construction of the word conferred would lead to difficulties with pursuing the appeal on this ground as no discretions were conferred by immigration rules: they were conferred by the Immigration Act 1971 (the 1971 Act) or perhaps in some cases by the prerogative power underlying it.
Held, substituting a fresh decision dismissing the Claimant's appeal against the decision of the Secretary of State:
(1) giving the closing words of s 84(1)(f) of the 2002 Act their ordinary meaning would mean that no appeal could be brought on the ground set out in that subsection; as this would put an end to virtually all appeals against deportation decisions, an alternative construction was to be preferred, albeit with the greatest hesitation: the word conferred in the provision was to be read as confirmed, allowing discretions, whatever their origins, to be the subject of the subsection (paras 1619);
(2) despite the prevarication of the Secretary of State in first asserting that the amended paragraph 364 was simply a clarification of the previous version, with no different meaning, and later conceding that the amendment had introduced a substantive change, the position was clear: the substantive meaning of paragraph 364 after it had been amended was very different from the meaning it bore previously; the decision in the present appeal was made prior to the amendment to the paragraph and therefore the old version applied to the consideration of the appeal (paras 20, 25, 28 and 30);
(3) in determining an appeal against a deportation decision made on conducive grounds on or after 20 July 2006, the Tribunal had to consider first, whether the claimant was liable to deportation in the terms of ss 3(5) and (6) of the 1971 Act, namely that a criminal court had recommended deportation, that the Secretary of State had deemed deportation to be conducive to the public good, or that the claimant was the family member of a person who was to be deported; secondly, the Tribunal had to consider whether the claimant's deportation would breach any of his rights under the Refugee Convention or the ECHR; thirdly, if there would not be any such breach, the Tribunal had to consider the exercise of the discretion under paragraph 364;** if an appeal were to be allowed under paragraph 364, the Tribunal had to base its decision on the principles set out in that paragraph, state what the exceptional circumstances were, why they were to be treated as particularly strong and why they enabled the individual's claim to displace the public interest; while each case had to be decided on its own merits, cases where it could properly be said that the discretion to make a deportation order exercisable under the amended paragraph 364 should be exercised differently were likely to be rare indeed (paras 31, 34, 38 and 39);
(4) in determining an appeal against a decision, whether made before or after 20 July 2006, to give removal directions under s 10 of the Immigration and Asylum Act 1999, as distinct from directions for removal of an illegal entrant, the Tribunal should first consider whether the decision showed a proper consideration of the matters set out in paragraph 395C and the exercise of a discretion to make that decision; if it did not, the appeal should be allowed on the basis that the decision was not in accordance with the law, leaving the Secretary of State to make a new and lawful decision in accordance with the Immigration Rules;
secondly, if the decision was made properly, the Tribunal should consider whether the Claimant could lawfully be removed (i.e. whether, as in a deportation case, removal would breach his rights under the Refugee Convention or the ECHR); if not, thirdly, the Tribunal should consider whether the discretion under paragraph 395C should be exercised differently, bearing in mind that the paragraph did not have the restrictions contained in the amended paragraph 364 (paras 4447)(5) in this case, the panel that heard the Claimant's appeal appeared to have arrived at a presumption that those not sentenced to certain terms of imprisonment should not be deported; this was sufficient to disclose a material error of law; taking into account the relevant factors in accordance with the unamended version of paragraph 364, there was nothing to indicate that the Secretary of State's discretion should have been exercised differently (paras 52, 53 and 60).
[1] 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 1971. He 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.
[2] 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.
[3] 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...
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