RU (Bangladesh) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Aikens,Lord Justice Elias,Lord Justice Longmore
Judgment Date08 June 2011
Neutral Citation[2011] EWCA Civ 651
Docket NumberCase No: C5/2010/0956
CourtCourt of Appeal (Civil Division)
Date08 June 2011
Between:
RU (Bangladesh)
Appellant
and
The Secretary of State for the Home Department
Respondent

[2011] EWCA Civ 651

Before:

Lord Justice Longmore

Lord Justice Aikens

Lord Justice Elias

Case No: C5/2010/0956

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL

THE IMMIGRATION APPEAL TRIBUNAL

DA000362009

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr David Chirico (instructed by Rahman & Co) for the Appellant

Ms Lisa Giovannetti QC (instructed by Treasury Solicitor) for the Respondent

Hearing dates: 20 May 2011

Lord Justice Aikens

The background to the appeal

1

The appellant, RU, is a national of Bangladesh. He is now 47 years old. He came to the UK in 1976, when aged 14, in order to live here with his parents. He has resided in the UK ever since. In about 1986 he was granted indefinite leave to remain ("ILR") in the UK. RU married in 1991 and went to live in Northern Ireland, where he ran a business. A daughter of the marriage was born on 1 December 1992 in Belfast. However, RU has had no contact with her for several years. RU divorced his wife in September 1998.

2

Following his divorce, RU's former brother in law Hafiz Abdul was shot three times in the arm by a Bangladeshi male. RU was complicit in this crime. Subsequently on 27 October 1999, after a trial at Inner London Crown Court, the two perpetrators were convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. RU was sentenced to 15 years imprisonment. The trial judge did not make any recommendation for deportation. In January 2009 the appellant was released on parole.

3

Meanwhile, in a letter directed to RU in prison dated 23 July 2008, the Secretary of State for the Home Department ("SSHD") notified RU that he had noted RU's conviction and that he took a very serious view of the "offences" and was therefore considering RU's immigration status and his liability to deportation. The letter stated that if RU considered that there were reasons why he should not be deported to Bangladesh upon completion of his sentence, he must notify the UK Borders Agency within 10 days. RU did write as directed, asserting that removal by a deportation order would infringe his rights to private and family life under Article 8(1) of the European Convention on Human Rights ("ECHR") and that a deportation order would not be proportionate under Article 8(2). The SSHD responded in a Decision Letter dated 20 January 2009. It pointed out that section 32(5) of the UK Borders Act 2007 ("UKBA") applied to RU, because he was a " foreign criminal", as defined in section 32(1) of UKBA; that is, he is a non-British citizen who had been convicted in the UK of an offence and had been sentenced to imprisonment for a period of more than 12 months. The letter stated that the SSHD was therefore obliged, by section 32(5), to make a deportation order against RU. The letter also said that the SSHD had taken account of the UK's obligations under the ECHR, in particular Article 8. The SSHD accepted that RU had a private life in the UK but had concluded that removal of RU by deportation to Bangladesh would not interfere with RU's Article 8 rights in a manner which was disproportionate to the exercise of the legitimate interests of the UK government in the prevention of disorder and crime and the protection of the rights and freedoms of others. Accordingly, the SSHD had decided to make a deportation order against RU, pursuant to section 32(5) of the UKBA and section 3(5) and section 5 of the Immigration Act 1971.

4

RU appealed that decision, exercising his rights under section 82(3A) and section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The appeal was heard by a panel of the Asylum and Immigration Tribunal ("AIT") consisting of Immigration Judge Hodgkinson and Mrs S I Hewitt on 17 April 2009. RU was represented by Mr David Chirico. He argued that the SSHD was wrong to have concluded that the interference with RU's Article 8 rights that would be caused by his removal pursuant to a deportation order would not be disproportionate to the exercise of the UK government's legitimate interests in the prevention of disorder and crime and the protection of the rights and freedoms of others.

5

The AIT promulgated its determination on 22 April 2009 ("the First Determination"). It allowed RU's appeal. I will have to examine its reasons for doing so in some detail, but note here that it is paragraph 56 of the First Determination that is central to this appeal.

6

The SSHD sought reconsideration of that First Determination and permission for reconsideration was given on 8 May 2009. The "stage one" reconsideration came before Senior Immigration Judges Storey and Mather on 18 August 2009. They ordered that the case should be adjourned to a "stage two reconsideration". Senior Immigration Judge Storey's reasons for that decision are dated 1 December 2009. In essence he said that the AIT had erred in law in paragraph 56 of its Decision in the way it dealt with the concept of the public good and public interest for the purposes of conducting the "proportionality" balancing exercise when deciding whether RU's removal pursuant to a deportation order would be disproportionate to his Article 8 rights. A "second stage" reconsideration was ordered, in which Judge Storey said there would be no need to reconsider the facts already found, but it would be necessary to take account of matters that had taken place since the First Determination.

7

The "second stage" reconsideration was then heard in the First-tier Tribunal (Immigration and Asylum Chamber) before Immigration Judge Sullivan and Ms SE Singer on 5 February 2010. They reserved their decision. Their determination was promulgated on 4 March 2010: ("The Second Determination"). In this Second Determination, the First-tier Tribunal ("FtT") stated that the findings of fact as recorded in the First Determination were not challenged. The FtT had also examined various documents, including RU's latest witness statement on which he was not cross examined.

8

The Second Determination concluded: (1) the removal of RU to Bangladesh pursuant to a deportation order would interfere with his rights under Article 8 in respect of his private life; (2) the decision of the SSHD to make a deportation order was "in accordance with the law" for the purposes of Article 8(2) of the ECHR; (3) an assessment of the competing factors, ie. the public interest on one side and the private interests of RU on the other, in order to assess the proportionality of the deportation decision, resulted in a " finely balanced assessment"; but (4) overall the interests of society outweighed those of RU, so that the SSHD's decision to make a deportation order against him was proportionate and so lawful.

9

RU now appeals to this court, with the permission of Sedley LJ, on a point of law, pursuant to section 103B of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act"). The point of law is, effectively, whether there was any error of law in the First Determination, and so whether it was wrong for it to be set aside.

The statutory framework

10

The statutory framework for deportation of foreign nationals who have committed offences in the UK has changed as a result of the UK Borders Act 2007 ("UKBA") coming into force. The relevant statutory provisions are now sections 3(5) and 5(1) of the Immigration Act 1971 ("the 1971 Act"), and sections 32 and 33 of the UKBA. I have set out the relevant parts of those provisions, together with relevant supplementary provisions in section 38(4) and the consequential amendments that were made to section 82(4) of the 2002 Act in the Appendix to this judgment.

11

Broadly, the scheme of the legislation, as applied to the facts of this case, is as follows: first, a " foreign criminal" is a person who is not a British citizen, but who has been convicted in the UK of an offence and to whom one of two statutory "Conditions" applies. The first of these two Conditions, set out in section 32(2) of the UKBA, is that the person has been sentenced to a period of imprisonment of at least 12 months. 1 There is no dispute that RU is, for the purposes of this appeal, a " foreign criminal". We need not consider Condition 2, which is set out in section 32(3). Secondly, if a person is a " foreign criminal", then section 32(4) of the UKBA declares that " for the purposes of section 3(5) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good". Thus, whereas under section 3(5) of the 1971 Act, it is for the Secretary of State to decide whether he deems the deportation of the foreign national concerned to be conducive to the public good, now, in the case of a " foreign criminal" as defined by section 32(1)-(3) of the UKBA, Parliament has declared that this is the case. This state of affairs is recognised by the fact that a new Rule 364A of the Immigration Rules (HC 395) states that the revised Rule 364 2 of the Immigration Rules " does not apply where the Secretary of State must make a deportation order in respect of a foreign criminal under section 32(5) [of the UKBA]". In SSHD v MK, 3 Sedley LJ, sitting in the Upper Tribunal (Immigration and Asylum Chamber), described this change as " legislative policy" taking the place of " executive policy" on when to deport non-British nationals who had committed offences in the UK. This may have consequences for the approach of the court when there is a challenge (on the ground that removal would be a disproportionate interference with ECHR rights) to the SSHD's decision to order deportation in the case of "foreign criminals". I will have to consider that below. Thirdly, if a person is a "foreign criminal" so that his deportation is conducive to the public good, section 32(5)...

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