JN (Deportation _ Conviction _ Public Transport _ Proportionality)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 03 February 2004 |
| Neutral Citation | [2004] UKIAT 9 |
| Court | Immigration Appeals Tribunal |
| Date | 03 February 2004 |
[2004] UKIAT 9
IMMIGRATION APPEAL TRIBUNAL
Mr C M G Ockelton (Deputy President)
Mr A Jordan
Mr G Warr
JN (Deportation _ Conviction _ Public Transport _ Proportionality) Kenya
The Appellant is the Secretary of State. He appeals, with permission, against the determination of an Adjudicator, Mr J R Gibb, allowing the appeal of the Claimant against his decision on 16 th September 2002 to make a deportation order against him on the ground that his deportation was conducive to the public good and that he is not protected from deportation by any international Convention. The Secretary of State has been represented before the Tribunal by Mr Underwood QC and Ms Giovannetti, instructed by the Treasury Solicitor. The Respondent, a citizen of Kenya, whom we shall call ‘the Claimant’, is represented by Ms Webber, instructed by the Refugee Legal Centre.
The Claimant was born on 3 rd July 1974. He arrived in the United Kingdom in May 1994 and sought entry as a visitor. That was refused and he thereupon claimed asylum. He was interviewed in connected with that claim in August 1994 and was refused asylum on 9 th July 1996. He appealed against that refusal, that is to say he appealed against the associated immigration decision refusing him leave to enter the United Kingdom. There were two hearings before the same Adjudicator, Mr Fox, and there were two Tribunal hearings. The reason for the complication was first that there was some doubt about whether the Claimant at his first hearing had had a proper opportunity to put his case in the absence of professional representation, and secondly because there were questions about internal relocation and about the application of Article 33(2) of the Refugee Convention. In August 1999, the Tribunal decided that the Claimant was in principle entitled to refugee status subject to consideration of the applicability of Article 33(2) if it were proposed at any time to return him to Kenya.
Article 33(2) arises in this appeal because late on Christmas Eve and early on Christmas Day 1995 the Claimant committed a series of serious offences. Following a trial before Her Honour Judge Pearlman and a jury, he was convicted of abduction, making a threat to kill, three counts of rape and one count of false imprisonment. The Claimant's defence to rape had apparently been consent. The victim underwent a change of personality as a result of her experiences. In passing sentence, the judge specifically rejected the suggestion that anything in the Claimant's history, including his claimed experiences in Kenya, could excuse or explain what she described as his wicked behaviour. She expressly passed longer than commensurate sentences totalling fourteen years imprisonment and made an order under section 44 of the Criminal Justice Act 1991. There was an appeal against sentence to the Court of Appeal Criminal Division. We have not been shown any details relating to that appeal and there is nothing before us which suggests that the fervour of the remarks made by the learned judge in passing sentence was doubted in the appeal to the Court of Appeal. It is, however, clear that the total term of imprisonment was reduced by that Court from fourteen years to eleven years. In any event, the Claimant was thus in prison at the time of his asylum appeal hearings. He was not released on parole, but he ceased to serve a term of imprisonment on the non-parole release date of 13 th May 2003, remaining under licence, as he does now, until 25 th December 2006.
Following the decision to make a deportation order, there were hearings before the Adjudicator on 2 nd April 2003, 2 nd June 2003, 4 th June 2003 and 18 th July 2003, following which we are told that there were written submissions made by both sides. After 13 th May 2003, the Claimant remained in immigration detention pending his projected deportation. On 18 th July 2003, the Adjudicator granted bail subject to conditions as to residence with the Claimant's wife and children, weekly reporting and compliance with the terms of the licence which applied to him on his release from his imprisonment. Following that period of bail, bail was discharged by an Adjudicator on 3 rd November 2003 but the Claimant was subsequently made subject to restrictions as an alternative to his detention under schedule 3, paragraph 2 of the 1971 Act. At the end of the first part of this hearing yesterday, the Claimant was again taken into custody. An application for bail was unsuccessful.
We should say something about the Claimant's family life. He met B in about 1994 and subsequently went through a ceremony of marriage with her in prison. There is no doubt that that marriage was bigamous. B has or had a previous husband living. We are not aware of any attempt to regularise the position. B was cautioned for the offence of bigamy. At the time they met, B was pregnant. She gave birth to K in April 1995. B became pregnant by the Claimant and gave birth to S in June 1996, by which time of course the Claimant was in prison. Much of the time that B and the Claimant knew each other before the Claimant's offence, they were not able to live together because B was in a mother and baby unit, owing to concerns about her parenting of K and subsequently S. K himself was twice in foster care: once immediately after his birth, and subsequently again apparently after a trial period of living with his mother B. The family unit consisting of the Claimant, B and the children had in fact never been tested until the Adjudicator released the Claimant on bail. Following concerns about the Adjudicator's determination, the Claimant was moved to different accommodation where he now lives, as it happens, apart from B, K and S. It is said, and again this is a matter which was not strictly in evidence in this appeal but we take it into account because it would be wrong to ignore it, that there is another child on the way, apparently conceived shortly after the Claimant's release on bail. There is copious evidence before us, as there was before the Adjudicator, expressing concern about B's ability to cope as a housewife and mother. There is no evidence before us relating to the situation in which the family have had the opportunity to live together since the Claimant's release.
Lastly, in this part of our judgment, status. The Claimant has never had leave to enter or remain here, which is of some importance in the context of this appeal. That is because mere success in what we may call the pure deportation element of the appeal would not of course give him leave to enter or remain. If he succeeds on that ground only, he would appear to be an overstayer liable to administrative removal.
The Adjudicator heard oral evidence from the Claimant, from B and from various experts. He considered a large range of documents. After some argument, he took the view that he had before him an appeal against the decision to make a deportation order on three separate grounds. Firstly, on the ground that the discretion should have been exercised differently. That is the pure deportation appeal. Secondly, on the ground that the Claimant's removal to Kenya would be a breach of the Claimant's human rights, and thirdly, on the ground that the Claimant's removal to Kenya would be a breach of the Refugee Convention. The Adjudicator allowed the appeal on all three of those grounds and the Secretary of State appeals to us on all three bases.
We have concluded for reasons that we shall explain that the Adjudicator erred in law in his evaluation of the question whether the discretion to deport should have been exercised differently, that he erred in law in his approach to the question before him relating to breach of the Claimant's human rights, and that he erred in law in his approach to, and his decision of, issues relating to the Refugee Convention. To that extent, therefore, the Secretary of State's appeal must be allowed.
But that is not the end of the matter. Mr Underwood referred us in the course of his argument to the recent decision of the Court of Appeal in Bunavic [2003] EWCA Civ 1843. At paragraph 19 of the judgment of Latham LJ in that case, there is some guidance on the role of the Immigration Appeal Tribunal in cases of this sort. We appreciate that the question before the Court of Appeal in Bunavic was not identical to the questions relating to this Claimant today. But the principle, we apprehend, is a similar one. In particular, the Court of Appeal in Bunavic provides what, in our respectful view, is valuable guidance on the role of public policy and in the role of the Immigration Appeal Tribunal in considering the judgment of an Adjudicator in a matter which affects public policy. Latham LJ said this:
“The appeal to the Immigration Appeal Tribunal is not restricted to matters of law. An Adjudicator does not have the same primary responsibility as the Respondent for determining the policy considerations inherent in a decision relating to the enforcement of immigration control. He has what might be called a supervising responsibility and has no greater expertise than the Immigration Appeal Tribunal. Indeed the contrary might be said to be the case bearing in mind that one of the functions of the Immigration Appeal Tribunal is to review decisions of different Adjudicators in order to secure a consistency of approach. In carrying out that function, although the Tribunal would necessarily hesitate before interfering with the decision of an Adjudicator, it is bound to do so if it considers that the decision is wrong. That does not mean that every decision by an Adjudicator in a doubtful case must be the subject matter of an appeal to the Immigration Appeal Tribunal. Leave to appeal will only...
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