KANE v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 04 January 2000 |
| Date | 04 January 2000 |
| Court | Immigration Appeals Tribunal |
Immigration Appeal Tribunal
A F Hatt Esq (Vice-President) C A N Edinboro Esq, Mrs S I Hewitt
R McKee of the Immigrants' Advisory Service for the appellant
Miss J Gallop and B Waight for the respondent
Case referred to in the determination:
R v Barnet London Borough Council ex parte ShahELRUNK [1983] 2 AC 309: [1983] 1 All ER 226.
Deportation citizen of Ireland whether exempt from deportation whether ordinarily resident in the United Kingdom on 5 January 1973 and for the five years previous to the date of decision to deport him. Immigration Act 1971 ss. 3(5)(b), 7(1), 7(3).
The appellant was a citizen of Ireland. He was convicted of serious drug offences. The Secretary of State decided to initiate deportation proceedings against him pursuant to section 3(5)(b) of the 1971 Act. He appealed.
Before the Tribunal it was argued on his behalf that under the provisions of section 7 of the 1971 Act and on the appellant's history he had been ordinarily resident in the United Kingdom on 5 January 1973 when the 1971 Act came into force and had been ordinarily resident at the date of decision (13 February 1997) for the previous five years.
For the Secretary of State it was argued that subsections (a), (b) and (c) of section 7 of the Act were cumulative as requirements for exemption from deportation.
Held
1. Sections 7(a) and 7(b) of the 1971 Act were not cumulative: each stood on its own.
2. On the facts, the appellant was exempt from deportation.
DETERMINATION
This is an appeal by Lawrence Kane, a citizen of Ireland, against the decision of the Secretary of State dated 13 February 1997 to make a deportation order against him under the provisions of section 3(5)(b) of the Immigration Act 1971 and to give directions for his removal to Ireland.
The Home Office explanatory statement relates that on 7 November 1995 at Isleworth Crown Court, the appellant was convicted of being knowingly concerned in a fraudulent evasion of a prohibition on the importation of a controlled drug of class A (heroin). He was sentenced to eighteen years' imprisonment and the sum of 5,290 was confiscated under the Drug Trafficking Offences Act. Deportation was recommended by the court. The appellant was refused leave to appeal against convictions or sentences on two occasions, first to the judge on 3 March 1996 and then to a full court on 3 October 1996. The appellant was brought to today's hearing from HM Prison Maidstone; his parole eligible date is 21 January 2004 and his earliest date of release is 21 January 2007.
The Secretary of State understands that the circumstances leading to the conviction were that on 20 January 1995 the appellant and his co-defendant, an Indian citizen, were apprehended by Customs & Excise at the Ramada Hotel Heathrow where, after a search of the co-defendant's hand baggage, customs officers found approximately 14.85 kg of heroin. The drugs had a street value of 1,380,000. The appellant pleaded not guilty at his trial.
The appellant's co-defendant, an air steward, who had worked for Air India for the last seventeen years, pleaded guilty and was convicted of the same drugs offence and sentenced to eight years' imprisonment and recommended for deportation. On 1 November 1995 the co-defendant and his wife applied for asylum in the United Kingdom.
The Home Secretary has no record of the appellant's arrival in the United Kingdom. On reception into custody and after being sentenced, the appellant stated that he was married with two children and that he was employed as a builder.
On 22 October 1996 the appellant was notified through the governor of HM Prison Parkhurst that in the light of his conviction for being knowingly concerned in a fraudulent evasion of a prohibition on the importation of a controlled drug class A and the serious nature of the offence, the Secretary of State was considering his immigration status and his liability to deportation. He was given the opportunity to put forward any valid reasons why he should not be deported. The appellant did not reply.
The Secretary of State then considered the appellant's position in the United Kingdom in the light of all the information before him. The appellant had been sentenced to eighteen years' imprisonment for drug offences. The court had also recommended that a deportation order should be made in his case.
The appellant was fifty-one years old, he had not made the Home Office aware of how long he had been in the United Kingdom and as an Irish national he had had free movement to and from the United Kingdom without any conditions or time-limit being imposed on his stay. Although the Home Office had been made aware of the fact that the appellant had a wife and two children and that he had been employed as a builder, the appellant had refused to respond to the Home Office enquiries and therefore the whereabouts of his wife and children were unknown. He had not made the Secretary of State aware of any compelling compassionate circumstances which he wished to be considered.
No representations had been made on the appellant's behalf.
The appellant was a European Economic Area (EEA) national and as such could not be deported on the grounds that removal was conducive to the public good, except on the grounds of public policy, public security or public health (section 15(2) of the EEA Order 1995 refers). Furthermore, under this article a decision to deport an individual could not be made under section 3(6) of the Immigration Act 1971, but only on the grounds of public policy, public security, public health or ceasing to be a qualified person. It was not clear that he had been exercising Treaty rights in the United Kingdom but the Secretary of State considered his position as though he had been. He had been convicted of drugs smuggling (heroin), it appeared from the amount seized that it was not intended for personal use. The seriousness with which the court viewed the offence was reflected in the long sentence of imprisonment. The Secretary of State also took a serious view of what the appellant had done. He considered that active involvement in the supply of a dangerous drug such as heroin constituted evidence of conduct which proved a threat to society and that accordingly the appellant posed the threat to the requirements of public policy if he were allowed to remain in the United Kingdom. The Secretary of State could find no compassionate circumstances to outweigh the seriousness of the offence of which the appellant had been convicted. Accordingly, having considered all relevant factors, including those set out in paragraph 364 of HC 395, the Secretary of State decided that it would be conducive to the public good to deport the appellant by virtue of section 3(5)(b) of the Immigration Act 1971 and gave directions for his removal to Ireland. (Paragraphs 362, 363, 364, 375 and 385 of HC 395 and 15(2) of the EEA Order 1994 refer). Notice of this decision was served on the appellant at HM Prison Maidstone on 13 February 1997.
Notice of appeal against the decision was lodged on 26 February 1997. On 26 February 1997 the Home Office wrote to the appellant requesting evidence of his residence in the United Kingdom. The appellant did not reply. The Secretary of State carefully considered the grounds of appeal but could find no reason therein to reverse his decision.
The appellant also indicated that he objects to removal to Ireland. The position regarding removal directions is that this power should be exercised so as to secure the person's return to the country of which he is a national or which has most recently provided him with a travel document unless he can show that another country will receive him notwithstanding his deportation from the United Kingdom; but, in considering any departure from the normal arrangements, regard should be had to the public interest generally and to any additional expense that may fall on public funds (paragraph 385 of HC 395 refers). The appellant has not named any other country to which he would prefer to be removed and shown that another country is willing to accept him on deportation from the United Kingdom. The Secretary of State can find no reason to change the removal directions.
At the commencement of the appeal hearing Mr McKee asked the Tribunal to make a decision on a preliminary matter which was whether the appellant was exempt from deportation as he was a citizen of the Republic of Ireland who was such a citizen at the coming into force of the 1971 Act ie on 1 January 1973 and was then ordinarily resident in the United Kingdom. He referred us to section 7(1) of the Immigration Act 1971.
We invited Miss Gallop to comment and she reminded us that the appellant had refused or failed to give any information to the Secretary of State as to details of his residency and therefore the respondent did not accept that the...
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