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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Johnston
Lord Eassie
Lord Wheatley
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[2007] CSIH71
XA41/06
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
APPEAL
under section 103(b) of
the Nationality and Immigration Act 2002
by
C.W.
Appellant;
against
A decision of the Asylum
and Immigration Tribunal
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Act: Bovey, Q.C.; Wilson Terris & Co., S.S.C.
Alt: Lindsay; Solicitor to the Secretary of State for the
Home Department
13 September 2007
[1] This is an
appeal against a determination by the Asylum and Immigration Tribunal dated 10
October 2005
and a subsequent refusal of leave to appeal to this court dated 3
November 2005. In their determination the Tribunal dismissed
the appellant's appeal against the Secretary of State's decision to make a
deportation order in respect of the appellant.
The original decision of the Minister was dated 2
May 2003.
[2] The appellant
is a citizen of Jamaica.
He was given six months leave to enter the United Kingdom in 1994 and
thereafter in June 1995 he was granted an indefinite leave to remain in this
country on the basis of his marriage to a British citizen.
[3] In June 1997
he was convicted in the High Court of Justiciary of rape committed in 1995, and
sentenced to four years imprisonment. Following
his conviction the marriage broke down.
There are two children of the marriage.
The appellant has maintained a relationship with his children, whom he
supported financially until permission to take up employment was
withdrawn. At the time of the hearing
the appellant had a new partner, who was expecting his child.
[4] In March 2003
he was convicted in the Sheriff Court of being concerned in the supply of a Class
A drug and sentenced to four months imprisonment. In relation to that conviction the sheriff
recommended his deportation.
[5] In its
decision the Tribunal refers to the appellant's having also had two further
criminal convictions. These are
mentioned in a Social Enquiry Report which was produced by the respondent
before the Tribunal. However, these two
matters were not put to the appellant at the hearing. The first was a conviction under the Sex Offenders
Act 1997 in the Sheriff Court at Edinburgh on 18 November
2002 when the
appellant was ordered to perform 100 hours of community service. There was also a further appearance in Edinburgh Sheriff Court on 20 September
2002 in
relation to a road traffic offence which, however, does not appear to have been
finally dealt with.
[6] The question
of deportation is governed by the Immigration Act 1971 as amended. The relevant provisions in respect of this
matter are as follows:
"3.
...
(5) 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 interest ...
(6) Without
prejudice to the operation of subsection (5) above a person who is not a
British citizen shall also be liable to deportation from the United Kingdom if
after he has attained the age of 17 he is convicted of an offence which is
punishable with imprisonment and on his conviction is recommended for
deportation by a court empowered by this Act so to do".
In addition the matter is subject to the Immigration Rules
and the relevant ones in the context of this case are as follows:
"364. Subject
to paragraph 380 in considering whether deportation is the right course on the
merits the public interest will be balanced against any compassionate
circumstances of the case. While each
case will be considered in the light of particular circumstances the aim is an
exercise of the power of a deportation which is consistent and fair as between
one person and another although one case will rarely be identical to another in
material respects ...
380. A
deportation order will not be made against any person if he is removable in
pursuance of the order would be contrary to the United Kingdom's obligations under the Convention
and Protocol Relating to the Status of Refugees or the Human Rights
Convention".
[7] In this appeal
the issues that were raised related firstly to the appellant's criminal record
and secondly to compassionate circumstances relating to the presence of his children
in the United Kingdom and his relationship with his
current partner Miss Swinney. These are
wholly separate issues.
[8] With regard
to the first issue the kernel of the decision of the Tribunal is to be found in
paragraph 79 of its determination:-
"It seems to us that in the period of
about nine years between the Appellant's arrival in the United Kingdom and the
decision to make a deportation order he was convicted of two serious offences,
albeit of a disparate nature, and of two minor offences. He spent almost three years in total of this
nine year period in prison serving sentences imposed on him for the two serious
offences. This record does not appear to
us to be the record of someone who does not represent a high risk of
re-offending. Although the Appellant has
not been convicted of any offence since his release from prison on 2nd
May 2003, he
has been aware throughout this period of the deportation proceedings hanging
over him and can be expected to have realised that any further conviction in
this period would very adversely affect his desire to remain in the United Kingdom.
Having regard, in particular, to the frequency and seriousness of his
convictions we are satisfied on the balance of probabilities that there is a
high risk of the Appellant committing further offences in relation to sex,
drugs or both."
[9] In addition,
in relation to the second matter, the Tribunal in paragraphs 97-100 discussed
the effect of Rule 364 on the present case and finally considered the issue in
relation to the Human Rights Convention.
[10] Mr. Bovey's
submissions fell into two separate categories.
[11] However,
before coming to the first of those chapters he opened with two minor points
which he described as complaints. In the
first place, referring to paragraph 36 of the Tribunal's determination he
submitted that the failure to put the two subsidiary convictions to the
appellant in evidence, i.e. in cross-examination, constituted an unfairness
which rendered the whole proceedings flawed.
[12] We have little
difficulty in disposing of this point upon the basis that it is of no material
significance, it not being suggested that there was any particular comment or
explanation which the appellant would have wished to put forward.
[13] Secondly, counsel
submitted that it was not clear why a recommendation for deportation had not
been made at the original conviction for rape some nine years ago. But the fact was that the sentencing judge
had not made a recommendation in those circumstances it was submitted that the
passage of time rendered the conviction immaterial to the issue of deportation.
[14] Again, we have
no difficulty in disposing of that submission of being of little
materiality. The deportation order was
recommended after the subsequent drugs offence and that in itself does not
disclose any error of law.
[15] The first of
the more substantial submissions by Mr. Bovey related to the finding by the
Tribunal which we have already referred to in paragraph 79 that there "is a
high risk of the Appellant committing further offences in relation to sex,
drugs or both".
[16] Mr. Bovey's
submission was that this conclusion was irrational upon the evidence. Although the social enquiry report provided
to the court on the occasion of the second conviction referred to a risk
assessment suggesting a high risk of re-offending, the author of the report
pointed out that this was simply a result of the gravity which the assessment
attached to the rape conviction. The
author of the report had provided a later report, based on his knowledge of the
appellant from supervising him which was very positive with no suggestion of
any material risk of re-offending. The
decision was accordingly unreasonable, given the history. The rape conviction, although serious, was
nine years old and no recommendation had been made at that time for deportation. The drugs offence was of a comparatively
minor nature and it appeared to have related to the appellant briefly holding a
packet of cocaine on behalf of somebody else which he subsequently transferred
to a third party, therefore, technically, being classified as a dealer. The two other convictions are of no
materiality, it was submitted.
Accordingly, over the whole period that the appellant had been in the United Kingdom, it was submitted, the relevant
offences i.e. the sexual offence and drug offence, were not analogous and in
each case a single episode. Given the
passage of time without any repetition of either it was impossible to say that
the appellant presents a high risk of committing further drug or sexual
offences.
[17] Mr. Lindsay,
for the Secretary of State, responded to this by simply submitting that it was
the decision or finding that the Tribunal was entitled to make and did not
amount to any form of irrationality or unreasonableness which flawed the
decision.
[18] On the second
main ground, relating to Rule 364, Mr. Bovey submitted that the Tribunal had
misdirected itself by not taking into account properly the views of the
appellant's partner Miss Swinney who had made it clear to the Tribunal that she
would not be prepared to go to Jamaica with the appellant if he was
deported. It mattered not that she had
entered into the relationship when she knew the issue of deportation might be
in the air (Boultif v Switzerland 2001 33 EHHR 50). He referred us to three European cases Mokrani v France 2005 EHHR 40; Zeyer v The Netherlands 2006 47 EHHR 621 and Boultif above. He also
referred to Huang v Secretary of State 2007 2 WLR 581 on the
question of proportionality, although he had to point out that the result in that
case has been overruled in the House of Lords.
[19] Finally we
should record that Mr. Bovey submitted that the issues under Rule 364 and the
Convention should be looked at as a unit and not separately as had been done by
the Tribunal. We record that that
submission was made because we do not find it germane to the determination of
this appeal.
[20] It is however
important to record that in the cases to which reference was made the European Court
at Strasbourg attached considerable importance to the reasonableness or
otherwise of a decision of the potential deportee's family or spouse or partner
in refusing, for stated reasons, to following the deportee if deportation was
effected. In each case the court ruled
that the position of the family or spouse was reasonable and deportation was
refused on compassionate grounds. In
this case Mr. Bovey submitted that the Tribunal had not even considered
the issue of the reasonableness of Miss Swinney's position and therefore
their decision on the compassionate questions of Rule 364 was also flawed.
[21] Having looked
carefully at the reasoning of the Tribunal in relation to the issue of the
effect of the convictions and in particular their finding that there is a high
risk of the appellant committing further offences in relation to sex, drugs or
both we are satisfied that their conclusion in this respect is irrational and
not justified by a reasonable view of the evidence. So far as sexual offences are concerned the
appellant's record contains only one such offence, committed in 1995. While rape is of course a serious offence,
the fact is that this conviction stands alone, with no suggestion to any other
offence of a sexual nature having been committed. The conviction under the Misuse of Drugs Act
1971 is also a single event - relating to a single day. The Tribunal's description of it as a
"serious" drugs offence does not sit happily with the penalty imposed, which
was below the upper limit of the sheriff's powers in a prosecution on summary
complaint. The first social enquiry
report's reference to the outcome of a risk assessment must be taken with the
limitations lowing from the assessment method used, and with the appellant's
subsequent conduct, known to the author of the report which did not suggest any
risk of re-offending. In our opinion,
when properly examined the evidence does not provide a basis upon which one
could properly make a finding that there is a high risk of the appellant
committing further sexual or drug offences.
Since it forms an essential element of the Tribunal's determination we
consider that that determination cannot stand.
[22] That is
sufficient for disposal of this appeal to the extent of requiring it to be
reconsidered by the Asylum and Immigration Tribunal and we do not therefore
have to determine the issue relating to the compassionate circumstances and
respect for family life. We have
considerable concerns as to whether the Tribunal properly considered the issue
of reasonableness in respect of Miss Swinney's position but we refrain from
offering any concluded view on that matter.
It is to be hoped that the issue will be taken into account when the
matter is reconsidered by the Tribunal but beyond that we do no more than bring
to the Tribunal's attention the European cases to which Mr. Bovey referred.
[23] For the
reasons we have given, accordingly, this appeal is allowed and the case is
remitted back to the Immigration and Asylum Tribunal for reconsideration.
