SS (Nigeria) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Laws,Lady Justice Black,Mr Justice Mann |
| Judgment Date | 22 May 2013 |
| Neutral Citation | [2013] EWCA Civ 550 |
| Docket Number | Case No: C5.2012.2354 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 2013 |
[2013] EWCA Civ 550
Lord Justice Laws
Lady Justice Black
and
Mr Justice Mann
Case No: C5.2012.2354
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DA/00720/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Abid Mahmood (instructed by Fountain Solicitors) for the Appellant
Mr Jonathan Auburn (instructed by The Treasury Solictor) for the The Secretary of State for the Home Department
INTRODUCTION
This is an appeal, with permission granted by Elias LJ on 12 November 2012, against the determination of the Upper Tribunal (the UT) promulgated on 13 July 2012 by which the earlier decision of the First Tier Tribunal (the FTT) was set aside but the appellant's appeal against the original decision of the Secretary of State to deport him was dismissed.
The appellant is a citizen of Nigeria born on 13 June 1980. He entered the United Kingdom on 10 April 2003 and claimed asylum. His claim was refused on 26 June 2003. His appeal rights were exhausted by 13 August 2003. He remained in the UK without leave. He entered into a relationship with a British citizen and they have a son born on 13 February 2008.
On 20 April 2011 the appellant was convicted at the Birmingham Crown Court on three counts of supplying crack cocaine and on 30 June 2011 was sentenced to three concurrent terms of three years imprisonment. He had been a street dealer. An antisocial behaviour order (ASBO) was imposed prohibiting him from entering Walsall Town centre. At length, after enquiries had been made, the Secretary of State decided that the appellant must be deported to Nigeria as a foreign criminal within the meaning of s.32 of the UK Borders Act 2007 (the 2007 Act): the reasoned decision was served on 30 September 2011.
The appellant is indeed a foreign criminal within the meaning of s.32, and accordingly was required to be deported by the Secretary of State unless his deportation would violate rights enjoyed by him pursuant to the European Convention on Human Rights (ECHR). I shall set out the relevant law below.
THE APPELLANT'S CASE AND THE TRIBUNAL PROCEEDINGS
The appellant asserts that his deportation would breach his right to respect for private and family life, guaranteed by ECHR Article 8. The basis on which Elias LJ granted permission to appeal was:
"ground 4, namely that the assessment for the best interests of the child has not been properly assessed. It is arguable the Tribunal put too much weight on the obligation of the applicant to produce evidence of the impact on the child of the decision to deport his father and ought to have sought further material for itself."
The FTT allowed the appellant's appeal, concluding (paragraph 41) that his deportation would be a disproportionate interference with his Article 8 rights. The UT granted the Secretary of State permission to appeal, in particular on the ground that the FTT had failed to have regard to the public interest in deporting foreign criminals.
In its substantive determination the UT noted (paragraph 15) that the appellant's partner had regularly visited the appellant in prison with the child; that he had a private life in the UK within his local area (paragraph 17); but also that he had worked illegally ( ibid). The pre-sentence report prepared in the criminal proceedings had classified him as a low level risk to the public (paragraph 26). The UT held (paragraph 33) that it would not be proportionate to expect the appellant's partner and child to relocate in Nigeria.
The UT cited much authority, including the summary in the Strasbourg case of Uner [2006] ECHR 873 of the matters to be considered in deciding whether an expulsion measure was necessary in a democratic society and therefore proportionate to its legitimate aims. They made observations about this appellant's case against each of the ten criteria or considerations listed in Uner. In light of the ground of appeal for which Elias LJ granted permission and to understand the UT's decision, I should set out criterion (ix) at this stage:
"the best interests and well-being of any children of the appellant; and in particular the seriousness of any difficulties they would be likely to encounter in the country to which the appellant would be expelled".
Applying that criterion to this case the UT said:
"40… This is not a case in which the child will be expected to relocate to Nigeria and so will remain in the United Kingdom in any event where she [ sic] will be cared for by her mother who was the primary carer when Mr S was in prison.
The best interests of the child are accepted as being a primary consideration although not always the only primary consideration and not necessarily the paramount consideration in this appeal. I accept that Mr S's son may need a family life in a greater way than he may do and that the child needs to be fed, clothed, washed, supervised, educated and loved if he is to develop and maximise his potential to be a properly functioning member of society which is preferable to a dysfunctional member or a member who believes it is acceptable to sell Class A drugs.
I accept that depriving Mr S's son of the benefits of a family unit which includes his mother and father could be more serious than depriving his mother of his father's company but it has not been proved that Mr S is his son's sole or primary carer. It has not been proved that the child will be denied his basic needs if his father is removed.
Although there is a lot of evidence about Mr S's criminality he has not chosen to produce much evidence indicating the existence of any emotional or psychological consequences/harm to his child if he is removed from the United Kingdom.
Lady Hale in the recent extradition case of HH and others [2012] UKSC 25 acknowledged in paragraph 34 of the judgment of the Supreme Court that it is not enough to dismiss those cases (extradition) in a simple way — by accepting that the children's interests will always be harmed by separation from their sole or primary carer but also accepting that the public interest in extradition is almost always strong enough to outweigh it and that there was no substitute for a careful examination of the evidence. Although this was an extradition case this principle is equally applicable to deportation cases and to this case in particular."
Earlier, The Secretary of State had made enquires of the child's mother and also Walsall Children's Services: see the decision letter.
The UT referred (paragraphs 51–52) to the OASys Assessment Report made on the appellant on 7 October 2011. They said:
"52. Having conducted the appropriate analysis the summary of the risk of harm presented by Mr S… states that within the community he presents a low risk to children, low risk to known adults and staff but a medium risk to the public…"
The UT concludes as follows:
"56. The presence of a partner and child and everything he now seeks to rely upon did not persuade him that he should not offend and there are concerns, with his previous history his offending and lack of qualifications, that in this economic climate it has not been shown that he will be able to secure employment sufficient to enable him to avoid the economic difficulties which are identified as increasing the risk of reoffending.
57. I find that Mr S has the potential to present a real risk to members of the public and to society in general due to the effect of drugs. I find this is a medium risk but one that is realistic in light of the circumstances surrounding the offence, the risk factors that have been indicated, and the evidence when considered in the round.
58. I accept, however, that it may be argued that this in isolation may not be sufficient to render the deportation necessary although I find that a great weight must be given to this element in light of the very damaging effect that drug-related offences have upon the wider society within the United Kingdom. It is also relevant that the appellant has no right to remain in this country and never has.
59. I also find that substantial weight must be given to the other element relied upon by the Secretary of State namely the deterrent element. The Lord Chancellor recently indicated openly that the United Kingdom was losing the war on drugs which was the first time a Cabinet Minister had made such a public admission. It could be argued in such circumstances, where the devastating effects of drugs are acknowledged, that the strongest deterrent element should be deployed where they are available.
60. Notwithstanding the fact that Mr S was only a 'street level dealer' it was he who chose to sell drugs to individuals within the United Kingdom and it is very often the street level dealer who is the one caught by the police and prosecutors. This does not however mean that because they are those at the end of the chain that they should escape the consequences of their actions especially as it could be argued that without such individuals those higher up will be unable to market their product which may have the effect of restricting the flow of drugs onto the streets of the United Kingdom.
61. Having considered all the evidence I find that it is the medium risk to society posed by Mr S due to the devastating effect of drugs, the lack of any lawful right to remain, the fact the relationship of both partner and child was created at a time when the appellant had no right to remain in the United Kingdom, the lack of any evidence of any real risk of emotional or psychological...
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