SL (Vietnam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson,Lord Justice Patten,Lord Justice Ward |
| Judgment Date | 11 March 2010 |
| Neutral Citation | [2010] EWCA Civ 225 |
| Docket Number | Case No: C5/2009/1939 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 2010 |
[2010] EWCA Civ 225
Senior Immigration Judge Southern
Before : Lord Justice Ward
Lord Justice Jackson
and
Lord Justice Patten
Case No: C5/2009/1939
IA/15130/2008
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Ms. Samantha Knights (instructed by Refugee and Migrant Justice) for the Appellant
Mr. Neil Sheldon (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 25 th February 2010
Lord Justice Jackson :
This judgment is in six parts namely;
Part 1: Introduction,
Part 2: The Facts,
Part 3: The Appeal to the Court of Appeal,
Part 4: The Law,
Part 5: The First Ground of Appeal,
Part 6: The Second Ground of Appeal.
Part 1. Introduction
This is an appeal against the decision of Senior Immigration Judge Southern to dismiss, upon reconsideration, the appeal of the appellant against a decision of the Secretary of State for the Home Department to make a deportation order requiring the appellant's return to Vietnam.
In this judgment I shall refer to the Immigration Appeal Tribunal as “IAT”. I shall refer to the Asylum and Immigration Tribunal (the successor to the IAT) as the “AIT”. I shall refer to the European Convention on Human Rights as “ECHR”. I shall refer to the Immigration Act 1971 as “the 1971 Act”. I shall refer to the policy which has at all times been in force in relation to unaccompanied minors as “the Minors Policy”. I shall use the abbreviation “ELR” for exceptional leave to remain. I shall use the abbreviation “ILR” for indefinite leave to remain. It should be noted that ELR has now been replaced by discretionary leave to remain.
I shall now set out the statutory and other provisions which are of particular relevance to this appeal. Article 8 of ECHR provides:
“8.1 Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Section 3(5) of the 1971 Act provides:
“A person who is not a British citizen is liable to deportation from the United Kingdom if—
(a) the Secretary of State deems his deportation to be conducive to the public good;”
Paragraph 364 of the Immigration Rules provides as follows:
“Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.”
The Minors Policy has at all material times been adopted by the Secretary of State for the Home Department. This provides that no unaccompanied child will be removed from the UK unless the Secretary of State is satisfied that adequate reception and care arrangements are in place in the country to which the child is to be removed. The policy also provides that normally an unaccompanied child who cannot be removed by reason of that provision will be given leave to remain in this country until his or her 18 th birthday.
After these brief introductory remarks I must now turn to the facts.
Part 2. The Facts
The appellant is a Vietnamese national who was born on the 10 th July 1987. His father died in 1997. His mother left the appellant and his younger brother to live with their grandmother. Their grandmother died in 2001. The mother then returned and arranged for the appellant and his younger brother to travel to the United Kingdom.
The appellant arrived in the UK on 10 th June 2002, when he was aged 14. He was accompanied by his brother who was then aged 13. Both the appellant and his brother claimed asylum on the 18 th June 2002.
By letter dated 22 nd July 2002 the Secretary of State refused the appellant's asylum claim. The appellant appealed to an adjudicator against that refusal. In a letter following the appellant's notice of appeal the appellant's solicitors drew the attention of the Home Office to the Minors Policy and in that letter the solicitors commented that if the Policy was applicable they would have expected the appellant to be given ELR.
The appellant was neither present nor represented at the hearing of his appeal, owing to an error on the part of his solicitors. The appeal proceeded on the basis of the appellant's written statement. By a written decision dated 3 rd December 2002 the adjudicator dismissed the appellant's appeal both on asylum and human rights grounds. The question of the appellant's entitlement under the Minors Policy was not raised by the respondent, the Secretary of State, and that matter was not considered by the adjudicator.
On 12 th October 2003 the appellant applied for permission to appeal out of time against the adjudicator's decision of 3 rd December 2002. Owing to an administrative error by the IAT, that application was not considered until 2005. On 1 st April 2005 the Deputy President of the IAT dismissed that application. The reasons for dismissing the application included the following paragraph:
“The grounds of appeal and the reasons given for extending time are that the applicant knew nothing of the refusal of his claim or of the progress of his appeal. He was at one time represented by Mathis and Co, a firm that has been the subject of intervention by the Law Society. However, Arona Sarwar & Co, who made this application to the Tribunal, do not appear to have had contact with Russell Cooke, who, as the firm taking over Mathis' files, would appear to be partly at fault in relation to the delay. Nothing in the grounds shows that time should be extended for as long as would be required to render this application valid.”
While those matters were proceeding at a leisurely pace through the IAT, the appellant formed a relationship with a young woman called Than Thi Nguyen. Ms Nguyen is a Vietnamese national who was brought to the UK at the age of 10 by her father in 2000 and who subsequently became a British Citizen.
On the findings of fact recently made by the AIT after hearing oral evidence, the appellant had a friendship with Ms Nguyen in 2004. This friendship developed into a relationship and the appellant and Ms Nguyen lived together for a time at Ms Nguyen's foster carer's home. That continued until August 2007, when Ms Nguyen made a trip to Vietnam in the hope of tracing and finding her father, although she was unsuccessful in that quest. Whilst Ms Nguyen was in Vietnam, the appellant was arrested at an address in Chadwell Heath. The arrest occurred on the 4 th September 2007, when the appellant was found to be engaged in the large scale cultivation of cannabis at that address. Two days later, on the 6 th September, Ms Nguyen returned from Vietnam. On the 29 th November 2007 the appellant pleaded guilty to being concerned in the production of cannabis, contrary to section 4(1) of the Misuse of Drugs Act 1971. The appellant was sentenced to two years detention in a Young Offenders Institution.
The appellant's custodial sentence did not bring to an end his relationship with Ms Nguyen. Whilst the appellant was serving his sentence Ms Nguyen visited him in the Young Offenders Institution. Indeed, following the appellant's release from the Young Offenders Institution, the appellant and Ms Nguyen resumed living together, this time in independent accommodation.
In January 2008 the Secretary of State invited the appellant to make representations as to why he should not be deported. The appellant responded by a letter dated 7 th May 2008 sent from Rochester Young Offenders Institution, arguing that he would lead a constructive and law abiding life in this country. Accordingly, he should be allowed to remain here.
On the 6 th August 2008 the Secretary of State wrote to the appellant stating that he took a serious view of the appellant's offence and he was considering deportation. The Secretary of State invited the appellant to make representations.
The appellant duly submitted representations to the effect that he was in a relationship with Ms Nguyen and deportation would be in breach of his rights under ECHR Article 8. The representations were supported by a letter from Ms Nguyen.
By letter dated the 2 nd September 2008 the Secretary of State informed the appellant's representative that the appellant would be deported. The Secretary of State stated that he had taken into account the seriousness of the appellant's offence, as well as the appellant's...
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