N (Kenya) and The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice May,Lord Justice Sedley,Lord Justice Judge
Judgment Date05 August 2004
Neutral Citation[2004] EWCA Civ 1094
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C4/2004/0669
Date05 August 2004
N (Kenya)
The Secretary of State for the Home Department

[2004] EWCA Civ 1094

[2004] UKIAT 00009


The Right Honourable Lord Justice Judge

The Right Honourable Lord Justice May and

The Right Honourable Lord Justice Sedley

Case No: C4/2004/0669




Immigration Appeal Tribunal

Royal Courts of Justice

Strand, London, WC2A 2LL

Andrew Nicol QC and Frances Webber (instructed by Luqmani Thompson) for the Appellant

Monica Carss-Frisk QC and Samantha Broadfoot (instructed by The Treasury Solicitor) for the Respondent

Lord Justice May

This is an appeal against a decision of the Immigration Appeal Tribunal of 3 rd February 2004. Laws LJ gave permission to appeal.



The appellant is a citizen of Kenya, born on 3 rd July 1974. He arrived in the United Kingdom on 27 th May 1994. He sought entry as a visitor. He was refused leave to enter, whereupon he claimed asylum and was released on temporary admission. In November 1994, he met a woman, whom I shall refer to as B. He has subsequently married her. She is a Dominican citizen who has lived in the United Kingdom since adolescence. In April 1995, she gave birth to a son of whom the appellant is not the father. On 8 th June 1996, she gave birth to the appellant's daughter. In May 2004, she gave birth to a further child of whom the appellant is the father. This third child had not been born when the events relevant to this appeal occurred. Mr Nicol QC, who appeared for the appellant, accepts that the existence of the third child cannot contribute to the appellant's case on this appeal.


On 25 th December 1995, the appellant was arrested for serious offences. On 27 th June 1996 he was convicted after a trial of abduction, threats to kill, three counts of rape and false imprisonment. He was initially sentenced to 14 years' imprisonment. The trial judge on reconsideration reduced the sentence to 11 years' imprisonment. These were obviously grave offences. They involved a knife and a pair of scissors. The judge concluded that the victim, who had given evidence, had sustained serious mental injury. She had suffered greatly and was terrified at the time of the offence. She had undergone a change of personality and was on medication. She suffered badly from nightmares. She was obtaining regular treatment from a psychologist. The judge concluded that the appellant was a danger to the public. She did not make a recommendation for deportation, expressing the view that this was a matter for the Secretary of State in possession of all relevant information.


On 25 th July 1996, while he was in prison, the appellant was refused asylum. There was then an extended period of appeals to adjudicators and to the Immigration Appeal Tribunal. The procedural details do not matter for present purposes. The appellant's asylum case was that he and his family had been brutally treated in Kenya and he feared that he would be subjected to such treatment if he had to return there. In August 1998, the Immigration Appeal Tribunal concluded that he was a refugee, subject to consideration of the application of Article 33(2) of the Refugee Convention. On 1 st September 1999, the Immigration Appeal Tribunal found the appellant to be a refugee.


On 22 nd May 1997, the appellant and B were married in a prison. It turned out that this was in fact a bigamous marriage, as she was then already married.


The appellant continued to serve his prison sentence. On 16 th September 2002, the Secretary of State made a decision to deport him, considering that in view of his convictions his deportation was conducive to the public good. On 26 th September 2002, the appellant appealed against this decision.


On 13 th May 2003, the appellant was released from his prison sentence on licence under section 35 of the Criminal Justice Act 1991. But he remained in detention under paragraph 2 of schedule 3 of the Immigration Act 1971, because he was subject to the decision by the Secretary of State for deportation.


His appeal to an adjudicator against the deportation decision proceeded. On 18 th July 2003, the adjudicator granted him bail. On 18 th September 2003, the adjudicator allowed his appeal against the deportation decision. There was some mix up about the Secretary of State's appeal against this decision. But on 7 th November 2003, the Secretary of State did seek to appeal to the Immigration Appeal Tribunal against the adjudicator's decision. Permission to appeal was given in December 2003.


When the adjudicator granted him bail, he went to live with his wife and the two children at an address in East London. By November 2003, he was subject to reporting and residence restrictions for immigration purposes and reporting restrictions and notification requirements under sections 1 and 2 of the Sex Offenders' Act 1997. There were difficulties in the neighbourhood of the address in East London and problems with the press. These related to the offences for which he had been convicted and the victim of those offences who lives in the vicinity. On 22 nd December 2003, because of these problems, the appellant was moved from the address in East London to a probation hostel in Kent. The move was motivated by public concerns that, by living in East London, he was too close to the victim of his offence. He thus became unable to continue to live with his wife and the two children.


On 15 th January 2004, at the hearing of the Secretary of State's appeal to the Immigration Appeal Tribunal, the Tribunal heard submissions as to the appellant's bail. In short, it was contended that he had been in breach of reporting and other restrictions. The Tribunal refused to continue his bail. He has been in detention since 15 th January 2004.


On 3 rd February 2004, the Immigration Appeal Tribunal allowed the Secretary of State's appeal against the adjudicator's decisions in relation to the appellant's deportation. He appeals to this court against this decision.


The appeal was to have been heard by this court on 18 th June 2004. On the previous day, the House of Lords published its decision in R (Ullah) v Special Adjudicator [2004] 3 WLR 23 and R (Razgar) v Secretary of State for the Home Department [2004] 3 WLR 58. These decisions were thought to have a bearing on this appeal. There was insufficient time to digest the opinions and conclude the hearing within the single day that was available. The hearing of the appeal was adjourned, eventually to be heard on 14 th July 2004. On 5 th July 2004, I heard and refused the appellant's further application for bail.

Deportation under Immigration Rules


Part 13 of the Immigration Rules in HC 395 relates to deportation. Within that Part, paragraph 364 provides:

"364 Subject to paragraph 380, in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects.

In the cases detailed in paragraph 363A, deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:

(i) age;

(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom;

(iv) personal history, including character, conduct and employment record;

(v) domestic circumstances;

(vi) previous criminal record and the nature of any offence of which the person has been convicted;

(vii) compassionate circumstances;

(viii) any representations received on the person's behalf."


Paragraph 380 of the Rules provides that a deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the United Kingdom's obligations under the Refugee Convention or the Human Rights Convention.

The Secretary of State's decision


The Secretary of State's decision to deport the appellant was communicated in a letter dated 10 th September 2002. This states that the appellant had been convicted of exceptionally serious offences. The judge at his trial had concluded that he was a danger to the public, rejecting submissions to the contrary. The Secretary of State had concluded that his offences were such as to make it appropriate to consider whether deportation was the proper course in the light of his individual circumstances.


The letter considered in some detail the appellant's family circumstances in the light of paragraph 364 of the Rules. He had been in the United Kingdom for eight years, six of which had been spent in custody. He had married and there were two children. The Secretary of State considered whether any disruption to his family life was justified in the light of his criminal convictions. He had considered whether the imposed disruption to his family life was proportionate to the legitimate aims of a democratic society, as outlined in Article 8(2) of the European Convention on Human Rights. Balancing these considerations, the Secretary of State was satisfied that his deportation would not put the United Kingdom in breach of Article 8 of the ECHR and the Human Rights Act 1998. The Secretary of State had concluded that, in the...

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