R (Samaroo) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Dyson |
| Judgment Date | 17 July 2001 |
| Neutral Citation | [2001] EWCA Civ 1139 |
| Docket Number | Case No: C/2001/0030 & 0052 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 July 2001 |
[2001] EWCA Civ 1139
The President
Lord Justice Thorpe and
Lord Justice Dyson
Case No: C/2001/0030 & 0052
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THOMAS J (Samaroo)
OUSELEY J (Sezek)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr N. Blake QC (Samaroo) Mr M. Bishop QC (Sezek) and Mr O. Raneshyar (instructed by Messrs T. Osmani for the Appellants)
Mr J. Howell QC and Mr S. Kovats (instructed by The Treasury Solicitor for the Respondent)
The appellants in both of these appeals are foreign nationals who were given permission to enter the UK many years ago. Both have put down roots and have established families here. Both were convicted of very serious drugs offences, and were made the subject of deportation orders by the Secretary of State under section 5(1) of the Immigration Act 1971, on the grounds that he deemed their deportation to be "conducive to the public good" (section 3(5)(b)). Allan Samaroo challenges the deportation order on the grounds that it would involve an interference with his right to family life under Article 8(1) of the European Convention on Human Rights ("the Convention"), and that such interference is not justified under Article 8(2). His application for judicial review was dismissed by Thomas J on 20 December 2000. Memet Sezek challenges the decision to deport him on the grounds that, as a Turkish national, he is protected from deportation by Decision 1/80 of the Association Council of the European Communities. His application was dismissed by Ouseley J on 21 December 2000.
Allan Samaroo
The Facts
Mr Samaroo was born in Guyana in 1948. In 1983 he left Guyana and went to the United States. In June 1988 he arrived in the United Kingdom and was given permission to stay for six months as a visitor. In September of that year, he married Jennifer Camacho, who was also born in Guyana but had acquired British citizenship in 1987. She has been resident in the United Kingdom since 1969, and has three children by a previous relationship, of whom the youngest is Chaka Camacho who was born in 198She is the owner of a flat at 35 Maskeleyne Close, London SW11. She pays the mortgage payments on the flat from her earnings as a nurse. On 15 th March 1990, Mr Samaroo was granted indefinite leave to remain in the United Kingdom as a foreign spouse. On 18 th March 1991, a son, Jonathan, was born to the marriage.
On 29 th April 1994, Mr Samaroo was convicted of being knowingly concerned with the importation of four kilograms of cocaine worth approximately £450,000. In passing sentence at Isleworth Crown Court, His Honour Judge Thomas said that Mr Samaroo was "involved in the drug smuggling by others". He was "the London end … arranging matters … and in contact with others concerning this operation". He was sentenced to thirteen years imprisonment and recommended for deportation. Mr Samaroo became eligible for release on parole in February 2000, and he has been on bail or temporary release since the institution of these proceedings. Presently living at the flat are Mr and Mrs Samaroo, Chaka who is a university student, and Jonathan.
On 30 th April 1998, The Secretary of State made a deportation order. On 26 th May 1998 Mr Samaroo appealed to a Special Adjudicator. He did not appear at the hearing and his appeal was dismissed. His application for leave to appeal to the Immigration Appeal Tribunal was dismissed on 13 th April 1999. On 27 th July 1999, Mr Samaroo's solicitors submitted to the Secretary of State a statement of case in support of his application for exceptional leave to remain in the United Kingdom on the grounds that he had been a model prisoner and had close family ties here. On 15 th February 2000, the Secretary of State refused to grant exceptional leave to remain. He identified the following compassionate circumstances:
"(a) his marriage and the length of it and his relationship with his wife;
(b) the considerable length of his wife's residence in this country;
(c) the existence of Jonathan and his age, including the fact that he is a British citizen with his own independent right to live here and his relationship to his father;
(d) his step-children in the UK, their relationship to their step-father and the assertion that it is a close family unit;
(e) the length of time since he was last living in Guyana;
(f) the likely impact on the family should they ultimately choose to accompany him to Guyana, bearing in mind that all Mrs Samaroo's close family are here, the fact she is employed here and has responsibilities here;
(g) the evidence as to the effect on Jonathan of the present situation and the impact of future separation;
(h) the assertions as to Mr Samaroo's future prospects in Guyana;
(i) the fact that the family would be separated from Mr
Samaroo should the family stay here;
(j) the fact that this was Mr Samaroo's first conviction;
and
(k) the descriptions of the efforts and progress made by Mr Samaroo whilst in prison where he has variously been described as a model prisoner with an exemplary prison record."
The Secretary of State went on to say that these factors were " of much weight". Against these "compassionate circumstances", however, the Secretary of State balanced the seriousness of the offence for which Mr Samaroo had been convicted, and concluded: " in light of the seriousness and nature of the offence the Secretary of State does not accept that it would be in the public interest to permit your client to benefit from the exercise of his discretion, exceptionally, on the basis of marriage and the other compassionate factors".
He then went on to say that he had carefully considered Article 8. He said:
"In the normal way, both Mrs Samaroo and the children would be given the opportunity to accompany Mr Samaroo upon his deportation. Should the family choose to remain in the UK (as from the documents seems likely) the Secretary of State considers that on the facts of this case any interference with family life is necessary in the interests of a democratic society. This was a serious offence and the detrimental effects of drug importing are well known."
Mr Samaroo thereupon applied for permission to apply for judicial review of the decision to refuse exceptional leave to remain. On 28 th July 2000, his solicitors wrote to the Secretary of State providing further evidence about his lack of ties with Guyana. The Secretary of State reviewed the matter, but decided not to change his mind.
Two witness statements by Stephen Still, a senior caseworker in the Immigration and Nationality Directorate of the Home Office, were placed before the judge. These amplify the position taken by the Secretary of State. In the first, Mr Still said that the Secretary of State regarded, inter alia, drug related offences, particularly those involving Class A substances, as "particularly serious and harmful to society". He accepted that the evidence indicated that Mr Samaroo was unlikely to re-offend. Nevertheless, he regarded Mr Samaroo's criminal conduct as "very serious". Mr Still dealt with the Article 8 point in the following way:
"25. In making this judgment the Secretary of State has borne in mind the provisions of the European Convention on Human Rights. This is the subject of the applicant's third main complaint, to which I now turn.
26. The Secretary of State accepts that the deportation of the applicant would interfere with his family life, particularly if his wife, child and stepchildren did not accompany him to Guyana. On the other hand the Secretary of State regards the maintenance of a firm but fair immigration policy as necessary for the economic well-being of the United Kingdom and for the prevention of disorder and crime. Moreover, he regards the deportation as a valuable deterrent to actual or prospective drug traffickers. As stated above, the Secretary of State regards trafficking in Class A drugs as one of the most serious of offences. Drug trafficking is also an offence which often has an international dimension. Immigration control plays an important part in the fight against drug trafficking. In all the circumstances, and accepting that the applicant personally is unlikely to re-offend, the Secretary of State has concluded that the interference with his family life which deportation would entail is necessary in a democratic society because of the applicant's criminal conduct."
In his second witness statement, Mr Still elaborated upon the Secretary of States' position with regard to Article 8. He said that the Secretary of State acknowledged that Mr Samaroo may no longer have any meaningful family ties in Guyana. But he was a national of that country and had lived and worked there until 1983. He then said:
"Since his release from detention on bail in February of this year it seems, from the letter of 7 th February, that he has been able to secure employment in the UK. There is nothing to suggest that he will not also be able to secure employment in Guyana and accommodation (if necessary). Indeed, it is plain from the reports of his time in prison that he has a wide range of skills. Moreover, he does not appear to have any health problems which would restrict the type of employment he could secure on return."
Mr Still said that it was accepted that the most likely scenario appeared to be that Mrs Samaroo and her children would stay in the United Kingdom following Mr Samaroo's deportation. Accordingly, the Secretary of State had...
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