R v Immigration Appeal Tribunal ex parte Sheikh Mohammad Nasser Al-Sabah [QBD]
| Jurisdiction | England & Wales |
| Judgment Date | 21 May 1991 |
| Date | 21 May 1991 |
| Court | Queen's Bench Division |
Queen's Bench Division
Brooke J
D Pannick for the applicant
N Pleming for the respondent
Cases referred to in the judgment:
Carmelo Bonsignore v Oberstadtdirektor der Stadt KlnUNK (No 67/74) [1975] ECR 297: [1975] 1 CMLR 472.
R v BouchereauELRUNK [1978] 1 QB 732: [1981] 2 All ER 924.
R v NazariUNKUNK (1980) 2 Cr App R(S) 84: [1980] Crim LR 447: [1980] 3 All ER 850.
R v Secretary of State for the Home Department ex parte SantilloELRUNK [1981] 1 QB 778: [1981] 2 All ER 897.
R v AramahUNK (1982) 4 Cr App R(S) 407: [1983] Crim LR 271.
R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141.
R v BilinskiUNK (1987) 9 Cr App R(S) 360: [1987] Crim LR 782.
R v KellyUNK (1987) 9 Cr App R(S) 385: [1987] Crim LR 648.
R v EscauriazaUNK (1987) 9 Cr App R(S) 542: [1988] Crim LR 252.
R v SpuraUNK (1988) 10 Cr App R(S) 376: [1989] Crim LR 165.
Wilson Humberto Toban v Immigration Appeal Tribunal [1988] Imm AR 319.
Hukam Said v Immigration Appeal Tribunal [1989] Imm AR 372.
Save Britain's Heritage v Number 1 Poultry LtdWLR [1991] 1 WLR 153.
R v Secretary of State for the Home Department ex parte BrindELRWLRUNK [1991] 1 AC 696: [1991] 1 WLR 588: [1991] 1 All ER 720.
Deportation conducive to the public good non-EEC citizen convictions for drug offences and corruption not recommended for deportation by the Court evidence that the applicant had reformed whether the decision to deport the applicant was reasonable whether it was unfair to deport the applicant when he would not have been deported if he had been an EEC citizen whether that was a factor that the Secretary of State had to show he had taken into account whether the reasons given by the Tribunal were adequate. Immigration Act 1971 ss. 3(2), 3(5)(b), 3(6), 6, 15(1), 15(2), 15(7), 19(1), 19(4), Tribunal and Enquiries Act 1971 s. 12; sch 1; HC 388 paras. 6, 68, 69, 146, 162, 167: EEC Directive 64/221 arts. 1(1), 3.
The applicant was a citizen of Kuwait who had been convicted of drug offences and corruption. The court did not recommend deportation. The Secretary of State decided however to initiate deportation proceedings against him pursuant to s. 3(5)(b) of the 1971 Act. An appeal was dismissed by the Tribunal.
On application for judicial review it was argued that the decision to deport the applicant was unfair. There was evidence that the applicant had reformed and would not re-offend. If he had been an EEC citizen, on the evidence, he could not have been deported. Accordingly the Secretary of State had failed to observe the requirement of the rules that the power of deportation be exercised as consistent and fair as between one person and another. Moreover the Secretary of State had not shown that he had taken that matter into consideration. As to the Tribunal, it had not given adequate reasons for its decision.
Held:
1. The court considered the current approach to deportation adopted by the criminal courts and reviewed in R v Spura. Whether or not a person was an EEC citizen, the overall test was whether a full enquiry reveals that a genuine and sufficiently serious threat to the requirements of public policy has affected the fundamental interests of society.
2. On the evidence it was hard to see how, applying EEC criteria, the applicant would have been deported.
3. The immigration rules however make it clear that there may be and can be inconsistency between the treatment under the rules of EEC and non-EEC citizens. That inconsistency was endorsed by Parliament, and in adopting that approach the Secretary of State had not acted ultra vires.
4. Whether it was wise for the Secretary of State to adopt that policy was not a matter for the court and he was not obliged in each case to ask himself whether he should apply the criteria applicable to EEC citizens.
5. There was no inadequacy in the reasoning by the Tribunal, albeit the learned judge expressed surprise at the Tribunal's conclusion, in the light of current sentencing policy and the degree of seriousness that the court appeared to have attached to the offences.
Brooke J: There is before the court a motion by Sheikh Mohammad Nasser Al-Sabah in relation to a decision of the Immigration Appeal Tribunal on 14 February 1990. On that date the Tribunal dismissed his appeal against a decision of the Secretary of State for the Home Department to deport him from the United Kingdom. The applicant seeks a declaration that the decision of the Tribunal is ultra vires and void.
The applicant is a citizen of Kuwait. The evidence before the Tribunal showed that he was a second cousin of the Emir of Kuwait. He has studied in this country from 1967 to 1971, and since then he has made a number of visits to the United Kingdom. He has interests in a firm of bullion dealers and in a construction company in Kuwait and he also has an interest in a Jersey-based company which deals in real estate in the United Kingdom. When he visits this country he transacts business here.
On 1 February 1989 at the Central Criminal Court he was sentenced to a total of two years' imprisonment. He had pleaded guilty to an offence of supplying a controlled drug to another and two offences of possessing a controlled drug. He pleaded not guilty to charges that he did an act tending and intended to pervert the course of public justice and of corruption. He was found guilty by a majority verdict on the corruption charge. The jury was discharged from giving a verdict on the remaining charge. The learned recorder at the Central Criminal Court sentenced him to fifteen months' imprisonment on the offence of supplying the controlled drug, concurrent two-month sentences on the two counts of possession, to which he pleaded guilty, and a consecutive sentence of nine months' imprisonment on the offence of corruption, making a total sentence of two years' imprisonment in all. He was also ordered to pay 763 prosecution costs. The learned recorder however made no recommendation for deportation.
In the statement on behalf of the Secretary of State which was before the Immigration Appeal Tribunal there appears this passage:
The Secretary of State understands that the circumstances which led to the conviction are that on 5th November 1988 police officers searched the address of Flat D, Kennington Park Road, under section 18 of the Police and Criminal Evidence Act 1984. The appellant was searched and found to be in possession of heroin. The appellant's home address of Flat 9, 6 Radnor Place, W2 was also searched. Heroin, cocaine and cannabis were discovered. The appellant stated that these drugs were given to prostitutes in payment for sex. The appellant also stated that he had a heroin and a cocaine habit. The police also informed the Home Office that the appellant attempted to bribe the escorting police officers during the home address search if they would destroy the evidence. The appellant had no known previous convictions.
The appellant was released on parole at a very early date on 25 August 1989. However, before his release and following an interview with him by an immigration officer on 10 August, he was served with a notice on 21 August which said this:
On 30 January 1989 and 1 February 1989 you were convicted at the Central Criminal Court of supplying a controlled drug, possessing a controlled drug and corruption. In view of these convictions the Secretary of State deems it conducive to the public good to make a deportation order against you.
The appellant exercised his right of appeal to the Immigration Appeal Tribunal, who heard his appeal on 11 December 1989. The Tribunal had before it not only a statement by the Secretary of State but also a favourable report from a probation officer dated 15 November 1989 and a report by a consultant psychiatrist dated 7 December 1989 who had been concerned with assisting him in relation to the drug addiction which he had had before his conviction. The Tribunal also heard evidence from the appellant himself. The Tribunal considered paragraph 162 of the House of Commons Paper 388 Statement of Changes in Immigration Rules, to which I will refer in due course. It also considered submissions that if the appellant had been an EEC national then, for the reasons set out in the case of R v Secretary of State for the Home Department ex parte SantilloELR [1981] 1 QB 778, the Secretary of State's decision would have been flawed on the face of it and that it followed that the Secretary of State was not treating the appellant in a manner which was consistent and fair in comparison with the way in which he would have dealt with an EEC national.
The Tribunal however, considered that it was clearly bound by the unanimous judgment of the Court of Appeal in the case of R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141 to find that the decision taken by the Secretary of State was perfectly proper on the face of it. The Tribunal went on to hold that if it was wrong in following that course it would have dealt with counsel's arguments on two standpoints: first, it would have held that if the appellant had been an EEC national the Secretary of State's decision would not have been bad on the face of it, and secondly, that people...
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R v Secretary of State for the Home Department, ex parte Al-Sabah (Sheikh Mohammed Nasser)
...v Number 1 Poultry LimitedWLRUNK [1991] 1 WLR 153:[1991] 2 All ER 10. R v Immigration Appeal Tribunal ex parte Sheikh Mohammad Al-Sabah [1992] Imm AR 25. Deportation — conducive to the public good — non-EEC citizen — convictions for drug offences and corruption — circumstances would not hav......