JO (Uganda) v Secretary of State for the Home Department

JurisdictionEngland & Wales
Judgment Date22 January 2010
Neutral Citation[2010] EWCA Civ 10
Date22 January 2010
CourtCourt of Appeal (Civil Division)
Court of Appeal *JO (Uganda) v Secretary of State for the Home Department JT (Ivory Coast) v Same [2010] EWCA Civ 10 2009 Dec 8; 2010 Jan 22 Mummery, Richards, Toulson LJJ

Immigration - Deportation - Conducive to public good - Migrant with indefinite leave to remain living in United Kingdom since early childhood - Secretary of State ordering deportation following criminal convictions - Whether interference with Convention right to respect for private and family life justified - Whether very serious reasons required to justify deportation - Immigration Act 1971 (c 77), s 3(5)(a) (as substituted by Immigration and Asylum Act 1999 (c 33), s 169(1), Sch 14, para 44(2)) - Human Rights Act 1998 (c 42), Sch 1, Pt I, art 8 - Immigration - Illegal entrant - Decision to remove - Illegal entrant living in United Kingdom since early childhood - Home Secretary seeking removal following criminal convictions for offences committed as juvenile - Whether interference with Convention right to respect for private and family life justified - Human Rights Act 1998, Sch 1, Pt I, art 8

The claimant in the first appeal, an Ugandan national born in 1982, arrived in the United Kingdom when he was approximately four years old and was granted indefinite leave to remain when he was 13. At the age of 20 he was convicted of drugs offences for which he was sentenced to 3½ years’ detention in a young offender institution. While on licence he was arrested for firearms offences to which he pleaded guilty and for which he was sentenced to five years’ imprisonment. The Secretary of State ordered the claimant’s deportation under section 3(5)(a) of the Immigration Act 1971F1, as substituted, as a person whose deportation was conducive to the public good. The claimant, who had not yet founded a family of his own, appealed to the Asylum and Immigration Tribunal on the ground that his deportation would be incompatible with his right to respect for his private and family life, guaranteed by article 8 of the Convention for the Protection of Human Rights and Fundamental FreedomsF2. The appeal was dismissed.

The claimant in the second appeal was born in the Ivory Coast and arrived in the United Kingdom when he was approximately five years old. He was never granted leave to remain. From the age of 15 he committed a number of criminal offences. At the age of 18 he was arrested on suspicion of having entered the United Kingdom illegally and removal directions were set. The claimant’s application for asylum was refused and his appeal to the Asylum and Immigration Tribunal, on the ground that his removal would be incompatible with his article 8 rights, was dismissed.

On the claimants’ appeals—

Held, (1) dismissing the first appeal, that when considering whether the deportation, on grounds of criminal offending, of an alien who was otherwise lawfully present in the United Kingdom was proportionate to the legitimate aim of the prevention of disorder or crime, for the purposes of article 8(2) of the Convention, it was necessary to examine both family and private life; that where the alien was a young adult who had not yet founded a family life of his own the relevant criteria were the nature and seriousness of the offence, the length of the alien’s stay in the United Kingdom, the time elapsed since the offence was committed and the alien’s conduct during that period, and the solidity of social, cultural and family ties with the United Kingdom; that for a settled migrant who had lawfully spent all or the major part of his or her childhood and youth in the United Kingdom very serious reasons would be required to justify expulsion, all the more so where the alien had committed the relevant offences as a juvenile; that the tribunal had directed itself correctly and had proper regard to the relevant criteria in reaching its overall conclusion as to the proportionality of the claimant’s deportation and its decision contained no material error of law; and that, accordingly, the tribunal’s decision would be upheld (post, paras 9, 11, 19, 21, 37, 41, 44, 55, 56, 57).

Üner v The Netherlands (2006) 45 EHRR 421, GC and Maslov v Austria [2009] INLR 47, GC applied.

(2) Allowing the second appeal, that cases of the ordinary removal of aliens unlawfully present in the United Kingdom required essentially the same approach as cases of the deportation, on grounds of criminal offending, of aliens lawfully present, except that in ordinary removal cases the legitimate aim being pursued was the maintenance of effective immigration control whereas in deportation cases it was the prevention of disorder and crime, which could properly be given greater weight in the balancing exercise; that although very serious reasons were not required to justify the expulsion of an alien who had spent his life in the United Kingdom unlawfully, the fact that he had been here since childhood would still be a weighty consideration in the article 8 balancing exercise; that where an alien unlawfully present in the United Kingdom had also committed criminal offences the decision to remove him might pursue the double aim of preventing disorder or crime and maintaining effective immigration control, in which case the tribunal should make that clear in the reasons for its decision since it affected the way in which the criminal offending was to be factored into the analysis; that the tribunal had not had a proper understanding of the importance of the claimant’s residence in the United Kingdom since early childhood or taken proper account of the fact that his offences had been committed as a juvenile, and it should have informed itself more fully of the details of his criminality before placing weight on it; and that, accordingly, the tribunal’s determination was flawed by errors of law and the matter would be remitted to it for further consideration (post, paras 2831, 5254, 55, 56, 57).

Per curiam. Where the alien whose deportation or removal is sought has founded a family additional criteria apply, which are the nationalities of the various persons concerned, the alien’s family situation (such as the length of any marriage, and other factors expressing the effectiveness of a couple’s family life), whether the alien’s spouse knew about the offence at the time when he or she entered into a family relationship, whether there are children of the marriage and, if so, their age, best interests and well-being, and the seriousness of the difficulties which the spouse and any children are likely to encounter in the country to which the alien would be expelled. Whether family members can reasonably be expected to relocate with the alien is a relevant factor and it is not necessary to show that there are insurmountable obstacles to their doing so or that it would be impossible or exceptionally difficult for them to do so before that factor can be taken into account (post, paras 9, 14, 19, 2324, 26, 56, 57).

The following cases are referred to in the judgment of Richards LJ:

AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240, CA

Boultif v Switzerland (2001) 33 EHRR 1179

DK (Serbia) v Secretary of State for the Home Department (Practice Note) [2006] EWCA Civ 1747; [2008] 1 WLR 1246; [2007] 2 All ER 483, CA

DS (India) v Secretary of State for the Home Department [2009] EWCA Civ 544; [2010] Imm AR 81, CA

EB (Kosovo) v Secretary of State for the Home Department [2008] UKHL 41; [2009] AC 1159; [2008] 3 WLR 178; [2008] 4 All ER 28, HL(E)

Grant v United Kingdom (Application No 10606/07) (unreported) given 8 January 2009, ECtHR

KB (Trinidad and Tobago) v Secretary of State for the Home Department [2010] EWCA Civ 11; [2010] 1 WLR 1630, CA

Khan v United Kingdom (Application No 47486/06) The Times, 3 February 2010, ECtHR

Maslov v Austria [2009] INLR 47, GC

Omojudi v United Kingdom (Application No 1820/08) The Times, 15 December 2009, ECtHR

Onur v United Kingdom (2009) 49 EHRR 1057

R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27; [2004] 2 AC 368; [2004] 3 WLR 58; [2004] 3 All ER 821, HL(E)

Üner v The Netherlands (2006) 45 EHRR 421, GC

VW (Uganda) v Secretary of State for the Home Department [2009] EWCA Civ 5; [2009] Imm AR 436, CA

The following additional cases were cited in argument:

AA (Uganda) v Secretary of State for the Home Department [2008] EWCA Civ 579; [2008] INLR 307, CA

AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678; [2007] 3 WLR 832; [2008] 4 All ER 190, HL(E)

AS (Libya) v Secretary of State for the Home Department [2008] EWCA Civ 289; [2008] HLR 705, CA

AS (Pakistan) v Secretary of State for the Home Department [2008] EWCA Civ 1118, CA

Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; [1947] 2 All ER 680, CA

B v Secretary of State for the Home Department [2000] Imm AR 478, CA

Bankovic v Belgium (2001) 11 BHRC 435

Beldjoudi v France (1992) 14 EHRR 801

Cooke v Secretary of State for Social Security [2001] EWCA Civ 734; [2002] 3 All ER 279, CA

Entry Clearance Officer, Mumbai v NH (India) [2007] EWCA Civ 1330; [2008] INLR 154, CA

Huang v Secratary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167; [2007] 2 WLR 581; [2007] 4 All ER 15, HL(E)

Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31; [2003] INLR 170, CA

Lamguindaz v United Kingdom (1993) 17 EHRR 213

MT (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2009] 2 WLR 512; [2009] 4 All ER 1045, HL(E)

Miao v Secretary of State for the Home Department [2006] EWCA 75; [2006] Imm AR 379, CA

OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694; [2009] INLR 109, CA

R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514; [1987] 2 WLR 606; [1987] 1 All ER 940, HL(E)

R v Wilkinson; Attorney General’s Reference (No 43 of 2009) [2009] EWCA Crim 1925; [2010] 1 Cr App R (S) 628, CA

R (A) v Secretary of State for the Home Department [2008] EWHC 2844 (Admin); [2009] 1 FLR 531

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