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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M v Secretary of State for the Home Department [2003] EWCA Civ 146 (19 February 2003) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2003/146.html Cite as: [2003] 1 WLR 1980, [2003] EWCA Civ 146 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL
TRIBUNAL
Strand, London, WC2A 2LL | ||
B e f o r e :
LORD JUSTICE LAWS
and
LORD JUSTICE JONATHAN PARKER
____________________
M | Appellant | |
- and - | ||
The Secretary of State for the Home Department | Respondent |
____________________
Mr Robin Tam (instructed by The Treasury Solicitor) for the Respondent
Hearing date: Thursday, 23 January 2003
____________________
Crown Copyright ©
Lord Justice Laws:
INTRODUCTORY
THE FACTS
"The claimant is a Bangladeshi citizen who was granted leave to enter the United Kingdom on 11 August 1994 as Imam to the Bristol Bangladeshi Community, and indefinite leave to remain on 19 January 1998, on the basis of his marriage to a British citizen. The claimant and his wife have two children, aged 5 and 3 years.
On 28 June 2000, the claimant was convicted of three charges of indecent assault of two girls, then aged 11 and 12 (placing his hand under their upper garments). The offences were said to have occurred at the girls' home when the claimant was teaching them Arabic. The claimant was sentenced to 18 months imprisonment concurrent for the offences against the 11 year old girl and 12 months to be served consecutively for the offence against the 12 year old girl. He was made subject to an order for extended supervision under s.44 of the Criminal Justice Act 1991 and was also recommended for deportation. On 6 February 2001, on the claimant's appeal against sentence, the Court of Appeal (Criminal Division) (Pill LJ, Pitchford J and the Recorder of London acting as a judge of the Court of Appeal) set aside the recommendation for deportation.
In doing so the Court of Appeal (Criminal Division) ("CACD") stated:
'13 The appellant committed three offences of indecency with girls while in a position of trust. Whilst serious, as we have observed, they were not the most serious of their type. Inquiries among the families visited by him in Bristol revealed no further complaints.
14 Given the appellant's past character, the offences of which he had been convicted, the consequences to his anonymity of the need to register on release, and the serious hardship which would befall him and his family should deportation follow, it is our judgment that this recommendation was disproportionate to the object of preventing crime in the United Kingdom. The recommendation for deportation is therefore quashed. We do so as the court which is reviewing sentence. It should be understood that nothing we say ties the hands of the Secretary of State.'"
The CACD left the prison sentence undisturbed.
"3.8 Furthermore the Secretary of State considers that the concerns raised about the appellant's family life were outweighed by the public interest in preventing such a crime as the appellant had been convicted of and considers that any interference with family life as a result of removal is therefore proportionate in pursuit of a legitimate aim under Article 8(2).
3.9 The Secretary of State took a grave view of the offences of which the appellant has been convinced. The appellant had been given a position of great trust, confidence and influence. He had abused the trust of the community, the parents of the children involved and worst of all the children themselves. The appellant had also not only been convicted of just one offence but three. In addition the probation report submitted by the appellant's representatives stated that the appellant posed a considerable risk of harm to the public and of re-offending."
I should notice that there are two overt references to the judgment of the CACD in the Explanatory Statement. Paragraph 1.3 of the Statement recites the fact that the appellant had appealed and that the CACD had on 6 February 2001 quashed the recommendation for deportation but confirmed the term of imprisonment; and a copy of the transcript of the CACD's judgment is annexed to the Statement at Annex C.
THE ISSUES
THE DETERMINATION OF THE ADJUDICATOR
"Due to the denial of the offences, the risk of [M] re-offending is quite high. Should he have the opportunity to access families in the future, particularly in a position of trust, then I would in my opinion say that the public would be at risk. I have been unable to assess [M]'s motivation to change whilst he continued to deny the offences."
As for Dr Gallwey, the Adjudicator reported his oral evidence thus:
"!0"… he said that the risk assessment of the appellant by the National Probation Service was too narrowly based upon only one factor namely, the appellant's refusal to acknowledge his offences. Other factors such as previous history included whether there had been earlier offences, or drug and alcohol abuse were also relevant. In his opinion there was remorse. The appellant was in depression and needed appropriate treatment. His assessment was that there was a low risk of the appellant re-offending."
At paragraph 16 of his determination the Adjudicator concluded that he accepted Dr Gallwey's assessment.
"….As Mr Kamalan conceded I must have regard to it [sc the CACD decision]. The Court of Appeal guidelines for trial judges as to the exercise of their powers under s.3(6) of the 1971 Act first offered in R v Nazari (1980) 2 Cr App R (s) 84, are concerned with a balancing exercise between the possibility that a convicted person may commit further crime in this country against the harm that may be done to innocent third parties if he were deported. The issues which I must consider range rather more widely. It remains a balancing exercise. Where the Secretary of State is minded to exercise his powers of deportation conducive to the public good he must have regard to all those matters which are set out in paragraph 364 of HC 395 [sc. the Immigration Rules made under the Act of 1971] and to all other compassionate circumstances of which he is aware …"
In paragraphs 18 - 24, which contain the Adjudicator's actual decision and reasoning in support (whose effect I have summarised), there is no further reference to the decision of the CACD except a passing and insignificant mention – "as the Court of Appeal Criminal Division said" – attached to the Adjudicator's comment in paragraph 22 that the appellant's sexual offences in themselves fell in the lower end of the scale.
THE DETERMINATION OF THE IAT
"… the Adjudicator's decision, unlike the decision of the Court of Appeal, was taken after hearing submissions by the Secretary of State and after reading the Home Office's explanatory statement, as well as hearing evidence from the appellant and his wife, at first hand, none of which opportunities had been afforded to the Court of Appeal" (paragraph 28).
Here are the IAT's conclusions as to the relevance of the CACD decision:
"41. It must, first of all be noted that the Court of Appeal, in finding that the recommendation for deportation should be quashed, as being disproportionate to the object of preventing crime in the United Kingdom, stated, clearly, that it should be understood that nothing which they said ties the hands of the Secretary of State.
42. Thus, the Secretary of State, in ordering the deportation of the Appellant, cannot be considered to be acting contrary to the decision of the Court of Appeal. The Secretary of State, in ordering the deportation of the Appellant was acting administratively on the basis of the evidence he had before him, taking into account the terms of paragraph 364 of HC 395, the terms of the ECHR and DP3/96. His decision was taken independently….
59. With regard to Miss Cronin's submission that the Adjudicator should have, as stated in Muchai Court of Appeal: [2001] EWCA Civ 932, [sc. an earlier Tribunal determination], have given reasons why he had differed from the Court of Appeal, in their finding that the Appellant should not be deported, we find that the question of whether or not the Adjudicator disagreed with the Court of Appeal did not arise. The Court of Appeal was dealing with a different aspect of the matter, namely whether or not the recommendation for deportation by the trial judge was disproportionate to the objective of preventing crime in the United Kingdom, on the evidence before it, while what the Adjudicator had to decide was whether or not the Secretary of State had properly exercised his discretion, in deciding to deport the Appellant, taking account of the terms of paragraph 364 of HC 395, DP3/96 and Articles 3 and 8 of the ECHR, had heard oral evidence, considered written evidence and had taken account of submissions on the part of the Appellant and the Secretary of State.
60. In our considered opinion, the Adjudicator properly considered the matter before him, took particular account of the decision of the Court of Appeal, by realising that neither he nor the Secretary of State was bound by it, heard and assessed the evidence and came to the conclusion which he did…"
The Tribunal then set out paragraph 24 of the Adjudicator's determination.
THE SOLE GROUND OF APPEAL: IMPACT OF THE CACD JUDGMENT
"(5) A person who is not a British citizen shall be liable to deportation from the United Kingdom if-
(a) the Secretary of State deems his deportation to be conducive to the public good…"
s.3(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 for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so."
s.6(1):
"Where under section 3(6) above a person convicted of an offence is liable to deportation on the recommendation of a court, he may be recommended for deportation by any court having power to sentence him for the offence unless the court commits him to be sentenced or further dealt with for that offence by another court."
THE CASES: NO IDENTITY BETWEEN THE FUNCTIONS OF THE SECRETARY OF STATE AND THE CACD
"This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records. That is self-evident. The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation…
… the courts are not concerned with the political systems which operate in other countries. They may be harsh; they may be soft; they may be oppressive; they may be the quintessence of democracy. The court has no knowledge of those matters over and above that which is common knowledge; and that may be wrong. In our judgment it would be undesirable for this court or any other court to express views about regimes which exist outside the United Kingdom of Great Britain and Northern Ireland. It is for the Home Secretary to decide in each case whether an offender's return to his country of origin would have consequences which would make his compulsory return unduly harsh. The Home Secretary has opportunities of informing himself about what is happening in other countries which the courts do not have….
The next matter to which we invite attention by way of guidelines is the effect that an order recommending deportation will have upon others who are not before the court and who are innocent persons. This court and all other courts would have no wish to break up families or impose hardship on innocent people…
We wish to state clearly and firmly that all a court does when it makes a recommendation for deportation is to indicate to the Secretary of State that in the opinion of the court it is to the detriment of this country that the accused should remain here. The final decision is for the Secretary of State. No doubt he will take into account the personal circumstances of each person whose case he is considering, and that will include the political situation in the country to which he will have to go if an order of deportation is made. These are matters solely for the Secretary of State, and not for the courts."
"The court does not have expertise in judging how effective a deterrent is a policy of deporting foreign nationals who have been convicted of serious drug trafficking offences once they have served their sentences."
"Those cases [sc. Nazari and later authorities of the CACD] were all concerned with the correct approach by a trial judge to recommending deportation. They did not purport to define or limit the scope of the Secretary of State's discretion under s.(3)(5)(b) [now s.3(5)(a)] of the Act... In Hukam Saib, Stocker LJ said at page 378:
'…it is to be noted that the case [of Nazari] was an appeal to the Criminal Division of this court, and related to guidelines which the court was laying down (so far as it was possible to lay down general guidelines) for the guidance of courts in making recommendations for deportation. It did not, and did not purport to lay down any guidelines for the exercise of his discretion by the Secretary of State'."
CONCLUSION ON THE APPEAL
"The judge's recommendation, far from concluding the Secretary of State's task, simply initiates it, albeit starting from a solid starting presumption in favour of deportation."
That with great deference seems to me to be entirely right in the case where a recommendation has been made and the Secretary of State is considering whether to act on it under s.3(6). That sub-section empowers the Secretary of State to order deportation on the basis of the court's recommendation. If the recommendation did not amount to a presumption in favour of deportation, the Secretary of State's function under s.3(6) would effectively be indistinguishable from his function under 3(5)(a). But there is nothing here to suggest the least reason why there should be any presumption to the effect that the Secretary of State, in considering his entirely separate power under s.3(5)(a), should follow the distinct decision of the criminal court not to recommend deportation.
THE RENEWED APPLICATION FOR PERMISSION TO APPEAL
"The court has consistently held that the rules governing the free movement of persons 'apply only to a national of a Member State of the Community who seeks to establish himself in the territory of another Member State or to a national of the Member State in question who finds himself in a situation which is connected with any of the situations contemplated by Community law'."
Lord Justice Jonathan Parker:
Lord Justice Ward: