PF (Nigeria) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Treacy,Lord Justice Sullivan |
| Judgment Date | 25 March 2015 |
| Neutral Citation | [2015] EWCA Civ 251 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/1399 |
| Date | 25 March 2015 |
[2015] EWCA Civ 251
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA004492013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Treacy
and
Sir Stanley Burnton
Case No: C5/2014/1399
Philippe Bonavero (instructed by Trott & Gentry LLP) for the Appellant
Mathew Gullick (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 12 March 2015
Introduction
This is the appeal of PF, a citizen of Nigeria, against the determination of the Upper Tribunal (Immigration and Asylum Chamber) (the President and Upper Tribunal Judge King) allowing the Secretary of State's appeal against the decision of the First-tier Tribunal allowing PF's appeal against the Secretary of State's decision to deport him. The Upper Tribunal remitted the appeal for re-hearing before a differently constituted panel of the First-tier Tribunal.
Having heard Mr Bonavero's submissions on behalf of the Appellant, we announced our decision to dismiss the appeal for reasons to be given in our written judgments to be handed down later. These are my reasons for dismissing the appeal.
The facts
The Appellant is aged 38. He came to this country in 1990 on a visitor's visa, and remained after the expiry of his leave. He was in this country unlawfully from February 1991 until 20 March 2000, when he was granted indefinite leave to remain.
In 1996 PF was convicted of a number of minor offences. In 1997 he was convicted of possession of a Class A controlled drug with intent to supply and sentenced to 4 years' detention in a Young Offenders' Institute. In March 2002 he was convicted of using threatening, abusive or insulting words or behaviour with intent to cause fear of, or to provoke, violence. He was given a conditional discharge. More seriously, in November 2002 he was convicted of possession of ammunition without a certificate, for which he was sentenced to 30 months' imprisonment. He was also convicted of simple possession of cannabis, a class B drug, for which he was sentenced to one month's imprisonment to be served concurrently. In May 2010 he was convicted of two counts of conspiracy to supply a Class A controlled drug, namely heroin. In September 2010 a sentence of 5 years and 8 months' imprisonment was imposed for those offences. In sentencing him, the Judge said:
You pleaded guilty at an early stage of these proceedings to count 1 of conspiracy to supply heroin in April 2009 and count 4, conspiracy to supply heroin in September 2009. Your basis of plea accepts that you are in a managerial role in respect of street dealing. In April 2009 you used an address in Hackney for the storage of heroin and money. You were directing X in the supply of heroin. He was arrested with two packs of heroin and he had a storage facility with four packages of heroin. In September together with Y you used a different address in Holloway as storage for heroin and money. You again were directing the street supply of diamorphine, again attempting … to stay in the background and to avoid detection by the police. Of those which you engaged … was caught with a large amount of cash and some 121 grams of diamorphine on him.
….
Because of your previous convictions and because of your role I am determined that the appropriate starting point would have been at the very top end of the range…, namely one of 8 years. Because of your plea of guilty I am able to reduce that by the full 30%. 30% off 8 years means a sentence of five years and eight months' imprisonment.
The Appellant suffers from sickle-cell anaemia. His mother, four sisters, two brothers and nieces and nephews are resident in the United Kingdom. He claims to be in a genuine and subsisting relationship with MP. She has one child from a previous relationship. The Appellant's daughter A was born on 7 May 1996 to a different mother, MF, and gave evidence at the hearing before the First-tier Tribunal. His second daughter was born in February 2007. There is a stepson, who suffers from attention deficit hyperactivity disorder.
Before the First-tier Tribunal, there were positive reports from the Appellant's Offender Manager. In her report dated 12 October 2012 she assessed him at low risk of harm to the public and low risk of reoffending. That assessment was repeated in her report dated 6 June 2013, in which she said:
I can confirm that [the Appellant's] compliance with his licence has been most satisfactory. As part of his sentence plan objectives [the Appellant] has engaged with the Probation Education Training and Employment officer and has gained a place on a mentoring training programme with Catch 22 as [the Appellant] has expressed a keenness to steer ex-offenders to lead pro-social lives using his own experiences as a valid testimony.
In addition [the Appellant] is attending Newham College on a part time basis where he is studying business management.
… Since the commencement of his licence, he has not been charged with further offending and has expressed a determination to become a law abiding citizen. I am in support of [the Appellant] to remain in the UK to enable him to continue with his rehabilitation.
The determination of the First-tier Tribunal
The Appellant's appeal against deportation was heard by a panel consisting of First-tier Tribunal Judge Herbert OBE and Mr G H Getlevog as non-legal member. They heard evidence from the Appellant, MF, MP and, as mentioned above, his daughter A. The only issue before them was whether the Appellant's deportation would breach his rights under Article 8 of the European Convention on Human Rights, and those of his family.
The Tribunal's determination disclosed fundamental differences between the members of the panel. Both members of the panel accepted that the Appellant had a private and family life in this country. Apart from that, they disagreed on all the material issues. In particular, Mr Getlevog did not accept as credible that the Appellant has changed his lifestyle and character to the extent that he no longer posed a risk of reoffending. On the other hand, Judge Herbert accepted that he had been or was in the process of being rehabilitated, and that he posed a low risk of reoffending. Mr Getlevog "was quite clear that he did not view the Appellant as having a significant private and family life to the extent that it could possibly be regarded as exceptional or override the presumption in favour of deportation". He was not satisfied of the subsisting nature of the Appellant's relationship with MP. Judge Herbert's view was that the Appellant "did have a purposeful and beneficial relationship with his younger children, and MF confirmed that he played an important part in the life of his eldest daughter".
Paragraphs 91 to 94 of the determination of the First-tier Tribunal are as follows:
91. Whilst I fully accept there is evidence upon which a decision could be made in what is a finely balanced decision to uphold deportation order, I find that on the peculiar facts of this case there are sufficient signs that the Appellant is sincere about setting his case against his previous criminal conduct that he has effectively been in the United Kingdom for a significant period of time, over 20 years, and that the detrimental effect on his children and partner outweigh the benefit to the public of him being removed from the jurisdiction.
92. I disagree with Mr Getlevog on the fundamental assessment that removing this Appellant in the midst of ongoing rehabilitation serves the public good and that the public good is served by the effective destruction of this family. The destruction of the family may not have an immediate consequence to society but they will almost certainly be a cost in the long term. A fundamental principle sentencing is the basic recognition that rehabilitation is an intrinsic part of sentencing. The deportation of this appellant would effectively remove that aspect of sentencing has been subordinate to the overwhelming need to prevent disorder and crime. My view is that this appellant has shown sufficient signs of rehabilitation to demonstrate that his removal is not necessary to maintain deterrent sentencing or show public revulsion for the crimes he has committed. Rehabilitation is an equally and some would argue more effective tool to combat crime.
93. The desire for rehabilitation is of a fundamental principle sentencing which also if one is looking at deterrence and public revulsion as a prime mover behind immigration policy than the public interest also recognises the potential for rehabilitation that exists in every criminal, no matter how serious the crime that they have committed. Given the balancing act and the fundamental difference of opinion I conclude that my decision as Immigration Judge prevails given my assessment and interpretation of the law.
Conclusion
94. I therefore allow this appeal for the reasons stated above under [Article] 8 as I find that the appellant's removal would place the United Kingdom in breach of its international obligations.
Events between the determination of the First-tier Tribunal and the substantive hearing before the Upper Tribunal
The determination of the First-tier Tribunal was promulgated on 10 July 2013. On 17 July 2013 the Secretary of State applied for permission to appeal to the Upper Tribunal. On 19 August 2013 the application was refused by a Judge of the First-tier Tribunal. On 23 August 2013, notice of that decision was sent to the Secretary of State...
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