Secretary of State for the Home Department v Alfred Suckoo
| Jurisdiction | England & Wales |
| Judge | Lord Justice Simon,Lord Justice Vos,Lord Justice McFarlane |
| Judgment Date | 01 February 2016 |
| Neutral Citation | [2016] EWCA Civ 39 |
| Docket Number | Case No: C5/2013/3267 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 February 2016 |
[2016] EWCA Civ 39
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(Immigration and Asylum Chamber)
Upper Tribunal Judge King TD
DA/00578/2012
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Vos
and
Lord Justice Simon
Case No: C5/2013/3267
Ms Carine Patry (instructed by Government Legal Department) for the Appellant
Mr Rajiv Sharma (instructed by Dotcom Solicitors Limited) for the Respondent
Hearing date: 20 January 2016
Introduction
This is the Secretary of State's appeal against a determination in the Upper Tribunal (Immigration and Asylum Chamber) of UT Judge King TD, promulgated on 10 September 2013, in which he allowed an appeal by the Respondent from the Appellant's decision to deport him as foreign criminal ('the Determination').
The background facts and procedural history
The Respondent is a Jamaican National who has been in the United Kingdom since 2002. He married in 2006 and has a child (A) born in 2009. As at the date of the Upper Tribunal hearing in August 2013, his wife was in the early stages of pregnancy with their second child. He now has two children.
In July 2008 he was arrested for drug offences, and in November 2009 he was sentenced to a term of 5 years and 9 months imprisonment, following his late pleas of guilty to charges of conspiracy to supply Class A controlled drugs: Crack Cocaine and Heroin. Having served time on remand he was released from prison on licence in April 2011.
In a letter dated 23 August 2012 the Appellant notified the Respondent that a decision had been made to deport him in accordance with the provisions of s.32(5) of the UK Borders Act 2007. An 8-page 'Notice of Decision', giving the reasons, accompanied the letter. He was also notified of a right to appeal the decision under s.82(3A) of the Nationality, Immigration and Asylum Act 2002, and exercised that right. He argued that his deportation would be contrary to his right to a private and family life under article 8 of the ECHR; and his appeal was allowed by the First-tier Tribunal. The Appellant appealed that decision on the basis that the Tribunal had failed to consider the public interest in deporting foreign criminals and had failed to provide adequate reasons in the proportionality assessment. Judge King found that the Tribunal had made a material error of law and that its decision should be set aside and remade. It was in this way that the matter came before him for a re-determination. He too allowed the Respondent's appeal on Article 8 grounds and it is this decision which is the subject of the present appeal.
The Judge heard oral evidence from the Respondent, his wife and his mother-in-law (summarised at §§16–26, 27–32 and 33–36 of the Determination); and it is clear that the Judge was impressed by each of them.
At §§37–45 he set out the circumstances of the convictions as he understood them: the Respondent had been one of four men who had conspired over an indictment period of about 2 months to supply class A drugs. None of the conspirators were addicts and their motives had been entirely financial. At §39 the Judge noted:
Between 15 May 2008 and 16 July 2008 some 12,934 phone calls had been accepted by a particular Sim card. It seemed to the [Sentencing] Judge therefore that the conspirators were working on average a sixteen hour day, supplying class A drugs to the streets of London. So far as the launderer was concerned, £18,980 and £31,000 were recovered. So far as [the Respondent] was concerned, he was arrested at the address and headquarters of the conspiracy with cash of £5,500.24. Significantly, he had a piece of paper bearing the number which was used to ring to order drugs …
He also noted that there had been a Pre-sentence Report containing an OASys assessment that he was at low risk of reoffending, and which had recorded that he had taken responsibility for his crime and had undergone training while in prison. He had not offended since his release on licence.
At §§51–53 of the Determination the Judge referred to the decision of this Court in SS (Nigeria) v SSHD [2013] EWCA Civ 550, to which it will be necessary to return later in this judgment. He recognised (at §57) that the Respondent fell into the category of those who had been sentenced to a term of more than 4 years, and that in these circumstances Rule 398 of the Immigration Rules (as it was then worded) made clear that it would only be in exceptional circumstances that a person's right to private and family life would outweigh the public interest in deportation.
At §§58–60 he made three short observations which are relied on by the Appellant as showing that he had made crucial errors of law in his determination.
58. It is not argued in this case that there are such exceptional circumstances.
59. The issue therefore to be considered is whether or not Article 8 of the ECHR engaged upon general principles that had been applied before the Rules came into being.
60. In MK [(best interests of the child) India [2011] UKUT 00475 (IAC)] the appellant, his wife and two children were citizens of India and essentially it was found that that they may return to live there. The situation in this appeal is somewhat different as the appellant's wife and children are British subjects. Considerations of Zambrano and Sanade come into play.
After considering the various submissions made on each side the Judge considered the position of the Respondent's wife and daughter.
68. … It may be said that the situation of [the Respondent's] wife is little different from other wives who face the absence of their husbands, but in this particular circumstance I find that there is an inter emotional dependency within the family as a whole, linked to the emotional as well as the physical need for [the Respondent] to be present and the support he gives to the family as a whole. It is a family that has had difficulties and has coped but needs stability and support to maintain itself further.
69. It is also right to note that the appellant's offending was some time ago. He has not reoffended. The offence, albeit extremely serious and distressing, was however of relatively short duration during that two month period. The offence was committed out of greed which [the Respondent] sincerely regrets. In terms of deterrent and punishment the appellant received a very substantial prison sentence indeed.
70. This is not an easy case to determine. It seems to me, and I so find, that the removal of the appellant would adversely affect the lives not only of [his daughter] but also his wife and her mother and potentially brother-in-law. As I have indicated I do not detect from their evidence any concealment or lack of candour but rather a family endeavouring to cope with the situation into which it has been placed.
71. The presence of the appellant in the family will bring stability and a chance for a family to be supported and to develop, if not so much in financial terms but in emotional and human terms.
72. Doing the best that I can therefore to balance the interests of the family with those of the public as so eloquently expressed in the Rules, I find in the circumstances of this particular case, on the findings of fact which I have made, that removal of the appellant would in the circumstances be disproportionate and in breach of the fundamental human rights, not only of the appellant but of those emotionally and physically linked with him.
In these circumstances the Judge allowed the Respondent's appeal.
The Appellant sought permission to appeal on three grounds. First, the Judge had failed to apply the law as set out in s.32 of the UK Borders Act 2007 and the approach set out in SS (Nigeria) which made clear that a foreign criminal's claim to resist deportation on Article 8 grounds needed to be very strong to prevail over the public interest in deporting foreign criminals. Second (and alternatively) the Tribunal erred in exercising an 'Inquisitorial Function' in assessing the best interests of a child ('the Inquisitorial Function point'). Thirdly, the Court had erred in its view that the case of Zambrano (European Citizenship) [2011] ECtJ (C-34/09) 'came into play,' ('the Zambrano point'). These grounds were developed in a skeleton argument dated 10 December 2013 drafted by Counsel previously instructed by the Appellant.
Following refusal of permission to appeal on the papers on 16 January 2014, the application was renewed orally and, on 13 May 2014 Maurice Kay and Aikens LJJ granted permission to appeal. In view of the procedural point taken on behalf of the Respondent, I refer in part to the remarks of Aikens LJ when giving permission.
The main basis upon which the application is made, and the basis upon which I am prepared to give permission in this second appeal, is that it is at the very least highly arguable that Judge King failed to take account of the principle set out by Laws LJ in SS (Nigeria)… at paragraphs 48–55 under the general heading, 'The Deportation of Foreign Criminals'. The effect of his decision is that it recognises that there has been a sea change as a result of the 2007 Act setting in place the provisions for the deportation of 'foreign criminals'. What was executive policy has now become legislative policy. This has resulted in a change in the balance that there has to be in giving effect to this legislative policy when dealing with issues of proportionality.
On 9 June 2014 Ms Patry's skeleton argument on behalf of the Appellant was lodged with the Court, in which the three points in the grounds of appeal were developed.
The appeal was due to be heard in February 2015 and Ms Patry sent a Case Law Update to the Court in preparation for the...
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