KB (Trinidad and Tobago) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Toulson,Lord Justice Mummery |
| Judgment Date | 22 January 2010 |
| Neutral Citation | [2010] EWCA Civ 11 |
| Docket Number | Case No: C5/2009/117 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 January 2010 |
[2010] EWCA Civ 11
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ASYLUM AND IMMIGRATION TRIBUNAL
Before: LORD JUSTICE MUMMERY
LORD JUSTICE RICHARDS
and
LORD JUSTICE TOULSON
Case No: C5/2009/117
Matthew Slater (instructed by The Treasury Solicitor) for the Appellant
Christopher Williams (instructed by Messrs Wilson & Co) for the Respondent
Hearing date : 16 December 2009
Lord Justice Richards:
The Secretary of State appeals against a determination of the Asylum and Immigration Tribunal promulgated on 11 March 2009 by which the tribunal allowed, on Article 8 ECHR grounds, an appeal by KB against the Secretary of State's decision to make a deportation order in respect of him. We heard the case the week after hearing appeals in JO (Uganda) and JT (Ivory Coast) v Secretary of State for the Home Department, in which judgment had been reserved. Because the issues in those appeals overlapped with the main issue in the present case, we reserved judgment in this case too. Judgments in the various appeals are being handed down together. Reference should be made to my judgment in JO (Uganda) and JT (Ivory Coast) [2010] EWCA Civ 10 for the relevant Strasbourg case-law and a general discussion of it.
KB is a citizen of Trinidad and Tobago who resided there for over twenty two years of his life before entering the United Kingdom in March 199He was granted six months’ leave to remain but thereafter remained in this country illegally for several years. Between 1993 and mid 1995 he was in a relationship with a Ms Bell-Ford. Their son, Kyle Bethelmy-Ford, was born on 15 January 1995 and is a British citizen. In May 1997, however, KB married a different woman, a British citizen whom he had met in 1994. He applied for and was granted an extension of stay as the spouse of a person resident and settled in the United Kingdom. He subsequently applied for, and in November 2000 was granted, indefinite leave to remain on the same basis. In November 2002 his wife separated from him as a result of an affair he had had, but they were reconciled in late 2004 or early 2005. In August 2005 KB was convicted of four counts of possession of controlled drugs and one count of possession of a class A drug with intent to supply, offences which were committed in September 2004. He was sentenced to six years’ imprisonment.
On 28 April 2008 he was served with a decision by the Secretary of State to make a deportation order against him under section 3(5)(a) of the Immigration Act 1971. His appeal to the tribunal was dismissed but reconsideration was ordered by the Administrative Court. At the first stage of reconsideration a senior immigration judge found a material error of law in the original tribunal's determination and directed a fresh hearing at which all issues were to be at large. The matter was then heard by a tribunal consisting of Designated Immigration Judge JM Lewis and Ms JA Endersby. In their determination promulgated on 11 March 2009 they allowed KB's appeal on Article 8 grounds.
On the reconsideration the tribunal heard evidence from KB himself, his wife and his employer, as well as receiving letters and statements from others, including a statement from KB's son, Kyle. It also received an expert psychological report on the effect that KB's deportation would have on KB and his son. In its findings of fact, it said that it accepted the evidence of KB and his witnesses, and went on:
“46. Specifically, we find that, at the date of the hearing, and at all times since their reconciliation in late 2004/early 2005, and including his period in prison, the Appellant is and has been exercising family life with his wife and that throughout his son Kyle's life, and including again his period in prison, the Appellant has been doing so with Kyle. We find also that at the date of the hearing and for periods before and after his imprisonment, the Appellant has been exercising private life, comprising his employment, his care work for his friend and his fostering, with his wife, of children with special needs.”
The tribunal then referred to a number of domestic cases on the application of Article 8. The relevance of some of the citations may be questionable, but nothing turns on that because, at the end of para 56, the tribunal directed itself as follows:
“Criteria for determining whether deportation is proportionate in cases following criminal convictions are set out in Boultif v Switzerland… and Üner v Netherlands…. We consider, in paragraphs 57 to 67, the appeal by reference to those criteria.”
And that is just what it proceeded to do, taking in turn each of the criteria set out in paras 57 and 58 of the judgment in Üner v The Netherlands (2007) 45 EHRR 14.
Thus, at paras 57–58 of its determination the tribunal considered “the nature and seriousness of the offence committed by the applicant”. It noted that the offence was regarded by the trial judge as very serious and also that KB had an earlier conviction in March 1999 for possession of drugs. It stated that proper weight must be given to the offence itself, as distinct from the probability of its being repeated; that the risk of reoffending was only one aspect of the public interest to be weighed against compassionate personal circumstances; and that other factors were deterrence and the view of the Secretary of State, who had special expertise in the administration of criminal justice and whose assessment of the public interest must be taken properly into account and given due weight. The tribunal referred to the decision of the Strasbourg court in Grant v United Kingdom (Application no. 10606/07, judgment of 8 January 2009), which in its view counsel for KB had successfully distinguished.
The next criterion considered, at para 59, was “the length of the applicant's stay in the country from which he or she is to be expelled”. The tribunal noted that KB had spent his first twenty two and a half years in Trinidad and Tobago and had then been in the United Kingdom for approaching seventeen years, for the first six without leave and for three years in prison.
At para 60 the tribunal considered “the time elapsed since the offence was committed and the applicant's conduct during that period”. It stated that the offence was committed in September 2004. After that KB had addressed the issues which led to his wife's separation from him and had attained a reconciliation with her. During his imprisonment his conduct was impeccable. Since his release he had made every effort to rehabilitate himself. In prison and subsequently he remained entirely free of drugs.
At paras 61–64, the tribunal considered in turn “the nationalities of the various persons concerned” (KB was a citizen of Trinidad and Tobago; his wife, her family and his son were all British citizens), “the applicant's family situation, such as the length of the marriage and other factors expressing the effectiveness of a couple's life” (the marriage had subsisted, with a period of separation of some two years, for approaching twelve years), and “whether the spouse knew about the offence at the time when he or she entered into a family relationship” (the offence was committed some seven years after the marriage).
The tribunal turned next, at para 65, to “the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled”. It concluded that for the reasons given in the wife's evidence, which was accepted, “on a balanced judgment in the light of all the material facts … she cannot reasonably be expected to follow her husband to Trinidad and Tobago”.
Turning at para 66 to “the best interests and wellbeing of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled”, the tribunal gave careful consideration to the position of...
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