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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094 (05 August 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/1094.html Cite as: [2004] INLR 612, [2004] EWCA Civ 1094 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL TRIBUNAL
Immigration Appeal Tribunal
[2004] UKIAT 00009
Strand, London, WC2A 2LL |
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B e f o r e :
THE RIGHT HONOURABLE LORD JUSTICE MAY
and
THE RIGHT HONOURABLE LORD JUSTICE SEDLEY
____________________
N (Kenya) |
Appellant |
|
- and - |
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The Secretary of State for the Home Department |
Respondent |
____________________
Monica Carss-Frisk QC and Samantha Broadfoot (instructed by The Treasury Solicitor) for the Respondent
Hearing dates : 14th and 15th July 2004
____________________
Crown Copyright ©
Lord Justice May:
Facts
Deportation under Immigration Rules
"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 the particular circumstances, 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. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections with the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf."
The Secretary of State's decision
"… has carefully balanced your personal and domestic circumstances against the seriousness of your crime and need to protect the wider community. The Secretary of State has concluded that in your case it is appropriate to deport you to Kenya."
The letter also stated that the Secretary of State had decided that, although the appellant had been accepted as a refugee, Article 33(2) of the 1951 Convention applied.
The appellant no longer a refugee
Legislation
The scope of this appeal
(a) the deportation appeal and the Article 8 case embrace the same facts;
(b) the adjudicator's jurisdiction in the deportation appeal was at least as extensive as his jurisdiction under section 65 of the 1999 Act;
(c) the deportation appeal necessarily embraced the Article 8 case, since section 6 of the Human Rights Act 1998 prohibits the Secretary of State from acting in any way which is incompatible with a Convention right, and because of the introductory words of paragraph 364 of the Immigration Rules referring to paragraph 380; and
(d) there is no possibility in this case that the appellant might fail in his deportation appeal but succeed in his Article 8 case.
I shall accordingly concentrate on the deportation appeal.
The adjudicator's determination
"35 At about midnight on 24 December 1995 the appellant abducted a 42 year old woman on the street. He held a knife to her throat and threatened to kill her if she did not go with him. The appellant dragged her to his home address and pushed her into his flat. He then talked to her for some time while drinking beer and smoking cigarettes and cannabis. The appellant kept picking up and putting down a pair of scissors. Whilst holding the scissors he forced her to take her clothes off. He forced her onto the bed and raped her three times, drinking and smoking in between. The victim was able to escape when she heard the appellant's flatmate enter, she said that she needed to go to the toilet, and, with the flatmate present, she was able to get dressed and leave. She went straight to the police who came to the flat and found the appellant asleep. He was arrested and his flatmate was taken for questioning. The appellant did not deny having sex but said that it was consensual.
36 The appellant entered a not guilty plea forcing his victim to give evidence. His barrister cross-examined her. The appellant denied the use of the knife. He gave evidence denying the use of the knife, denying the use of the scissors and saying that there was only one sexual act rather than three. When it was put to the appellant in cross-examination at the hearing on 4 June 2003 that he had told these various lies at the trial the appellant accepted that he had and said: "looking back my victim was doing her best to stop it happening. The fact is I raped her three times." When asked in cross-examination when he had come to terms with the seriousness, and stopped minimising the offence, he answered that it was in 1996 when he applied to do the sexual offenders' treatment programme course and "told everything to the psychologist"."
The adjudicator then referred to the trial judge's sentencing remarks.
- The appellant's wife had visited him regularly with the children at the various prisons in which he was detained. They were married in prison in the Isle of Wight in 1997.
- The appellant telephoned her from prison every day and talked to her and the children.
- She had some difficulties looking after the children. She spent some time after each child was born in a mother and baby unit. Each child had been on the child protection register.
- The appellant and his wife had considered whether they might both go with the children to live in Kenya, but had concluded that it would not be feasible.
The adjudicator considered at length Social Services documents relating to the family.
"The most important part of the deportation decision of September 2002 was whether the appellant would be a danger [to] the community on release. The reports were all addressing this question."
"101. I therefore find that the appellant has, over the years he spent in prison, but particularly through his experience of psychotherapy at Grendon, gone through a process of coming to terms with the traumatic events in Kenya and of coming to a real understanding of his own offence. As a result of going though this process he has come to a position of greater self awareness and of control over his anger. He has also taken responsibility for his offence and come to feel genuine remorse. As a result there is no longer a danger that he will act in a violent way as he did before. I conclude that it is very unlikely that the appellant will re-offend."
"I have no doubt, based on my assessment of the appellant and B, and the evidence of all of the expert witnesses, that there is a genuine and strong family bond between the appellant, B and the children."
He assessed B as being vulnerable to exploitation for a number of reasons. But this did not mean that the children were at risk or that the family needed help from Social Services.
"105. I have decided to allow the appeal against the decision to deport the appellant on the grounds that his presence in the United Kingdom is not conducive to the public good. I have come to the conclusion that discretion should have been exercised differently. My main reason is my finding on the risk of re-offending. I regard this as the most significant matter counting for deportation in the balancing exercise. When the risk of re-offending is taken out of the balance the scales tip clearly against deportation on conducive grounds. The other important reason is that the appellant's family need him, and, because of their vulnerability, it would be very difficult for the whole family to relocate either to Kenya or Dominica.
106. Looking at the factors in paragraph 364 of HC395 the appellant is now 29 and has been in the UK for nine years. Although he has been recognised as a refugee he has not been given leave to remain, so none of his time has been as a settled person, and most of his time here has been spent in prison. He has few connections in the UK apart from his family. His personal history, including character and conduct, is that he only had casual jobs before being imprisoned and he has pursued some education in prison. His domestic circumstances are that he has a wife and two children with whom he has a bond based mainly on visits and other contact whilst he has been in prison. His wife is vulnerable and there has been a history of social services involvement.
107. He committed a very serious criminal offence for which he was sentenced to a long prison term. He was clearly disturbed, out of control and dangerous in 1994 and 1995. He subjected a stranger to a horrific ordeal of rape with threats of violence with a knife and scissors. He did not plead guilty as he should have done. Rather than dealing with his feelings he was trying to escape from them with drink and drugs. During more than seven years in prison, however, he has changed so that his risk of re-offending is now low.
108. The compassionate circumstances are his own history of being a victim of torture and the manner in which he lost his family in Kenya.
109. The facts in each deportation case will be different, as noted by paragraph 364, and in each case it is necessary to decide where the balance lies between those factors counting in favour of the appellant not being deported and those indicating that the appellant's presence would not be conducive to the public good. In this case the appellant has committed an extremely serious offence. If the risk that he would commit a similar offence again was anything other than very low I would conclude that his removal from the United Kingdom would indeed be justified. The prevention of another crime of this sort in this country is of very great importance, and is a matter that would weigh heavily in the balance in favour of deportation.
110. My conclusion in this particular case is that the factors counting in favour of the appellant not being deported, in particular the interests of his wife and two children and the minimal risk of re-offending, are not outweighed by those suggesting that his presence in the United Kingdom would not be conducive to the public good. As a result I conclude that the Secretary of State's discretion in this matter should have been exercised differently and I allow the appeal on this basis."
"112. My findings, based on my assessment of all of the evidence, are different from those that formed the basis of the respondent's decision. The most important difference concerns the risk of re-offending. The decision was on the basis that there was a risk of re-offending (based on the 2002 reports), whereas I have found that the risk is very low. Another difference is that the decision does not appear to have taken into account the particular circumstances of the appellant's family, in particular the history of social services involvement and the reasons for it. …
113. In the balancing exercise between the legitimate aim of preventing crime on the one hand and the interference with family life on the other the result changes in the appellant's favour when the risk of offending is assessed as very low. In this way the Article 8 balancing exercise is very similar to the conducive deportation exercise and the result is the same for the same reasons; the balance tips towards the appellant not being deported because the risk of re-offending is very low and the family are vulnerable."
The adjudicator then referred to the appellant's family life as being "real and living" and described the interference which would occur if he were deported. He concluded (paragraph 113):
"For this degree of harm to be justified there would have to be a clear risk of re-offending. I therefore conclude, paying deference to the Secretary of State's view of the importance of the prevention of crime, that the interference with the appellant's family life involved in his removal would be disproportionate to the legitimate aim pursued. I therefore conclude that his removal would amount to a breach of Article 8 of the European Convention on Human Rights."
The Immigration Tribunal's decision
"36. We are satisfied that the Adjudicator's approach in paragraph 105 of his determination, exemplified in his statement that the risk of re-offending "is the most significant matter counting for deportation in the balancing exercise" was fundamentally flawed. We do not accept that the Adjudicator is compelled to defer to the Secretary of State's judgment as to what crimes are so serious that society's revulsion may demand a deportation decision without regard to risk of re-offending: but we do consider that the Adjudicator must take into account that some crimes are of such a nature, and he will therefore need to consider whether the offence with which he is concerned is one in which evidence as to the risk of re-offending is of any great relevance at all. This was a matter on which, in our judgment, the Adjudicator again erred in law.
37. Thirdly, it is clear from paragraph 364 and all the jurisprudence on it, that the task is to balance the public interest against the compassionate circumstances or the individual circumstances of the case. The only trace of the Adjudicator having considered the public interest at all is at paragraph 109 where he refers to "the prevention of another crime of this sort in this country is of very great importance". This is, in our view, grossly insufficient. The public interest element in a deportation decision is constituted not only by the need to secure the safety of the citizens of this country from future criminal acts by the Claimant himself: it constitutes also for the need for a decent society to express its revulsion at crimes of this sort and to make it clear that the full rigour of the law will be unleashed on those who commit them. It is simply not right, as the Adjudicator has done, to ignore the past in favour of the future. The past has a real importance, not only in the sense of the Kenya experiences casting a shadow over more recent events, but in the sense of the Claimant's history in the United Kingdom as well."
"Although we look forward from the date of the decision, we are concerned with the facts as at that date. At that date, given the decision which has been made, there was no reason to suppose that the Claimant and B and K and S would have any more family life in the United Kingdom than they had had in the past. The Claimant had been found guilty of a crime whose commission arouses revulsion. He was a party to a bigamous marriage but had never established life with the other party to that relationship. The relationship is not of no importance, but in the circumstances it cannot be regarded as of the highest importance. Nor can the relationship with his child, who was born when he was in prison, or B's child K, whom he hardly knew before the commission of the offence. He had no real connections with the United Kingdom other than those which arose from his family or quasi-family relationships. He had no leave to remain, no job, no property. He had been in the United Kingdom for about eight years, of which nearly seven had been spent in prison."
I have put one phrase in this paragraph in italics for reasons which will appear.
"40. Weighing, as we do, all the relevant factors, including those we mention specifically, we have concluded that, on the primary factors found by the Adjudicator, the exercise of the discretion to deport this man who committed these serious crimes and who had merely a low risk of re-offending was entirely correct. We do not consider that the discretion should have been exercised differently and so we allow the Secretary of State's appeal on this ground."
"We do not think that it would. The family grouping such as it was had already been gravely compromised by the Claimant's imprisonment. It did not exist in any real sense before he went to prison and we have no evidence as to its status at the present time. The Secretary of State takes the view that the seriousness of the Claimant's offence justifies his deportation, even if that means that he has to leave his family group. The decision of the Court of Appeal in Samaroo shows that that is not out of the question as a lawful response. This is not a long-established domestic grouping and none of the children have ever lived with their father until recently. There is evidence that B married the Claimant in order to assist in his immigration status. The crime was a particularly unpleasant one and the family life is tenuous in the extreme."
The Tribunal took account of Ms Webber's submissions on behalf of the appellant. They concluded that the interference with the appellant's family life resulting from deportation would not be disproportionate to its legitimate aim.
"[The Court's] task consists of ascertaining whether the deportation in issue struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the prevention of disorder or crime on the other."
"But 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. In R v Secretary of State ex parte Ali Dinc [1999] 1 NLR 256 (where the applicant had been sentenced to five years imprisonment for possession of heroin with intent to supply) Henry LJ said that, in making his decision whether under the Immigration Rules a deportation order should be made, the Secretary of State was:
"… better placed to take a wider policy based view on the key question as to whether in the language of [the guidance known as] DP/2/93, removal can be justified as necessary in the interests of a democratic society."
I respectfully agree."
Submissions
"Another important consideration will also be whether the marriage, albeit manifestly not one of convenience, was contracted at a time when the parties were aware that the immigration status of one of them was such that the persistence of the marriage within the host state would from the outset be precarious. The court considers that where this is the case it is likely only to be in the most exceptional circumstances that the removal of the non-national spouse will constitute a violation of Article 8."
Discussion and decision
Lord Justice Sedley:
The law
Perversity
Lord Justice Judge:
"…
(iv) personal history, including character, conduct and employment record;
…
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
…"
Such rights as the potential deportee may enjoy under Article 8 of the European Convention of Human Rights (ECHR) also require express consideration. Even if they would normally fall to be treated as part of any "compassionate circumstances", Article 8 itself is directly engaged.
"The most important part of the deportation decision … was whether the appellant would be a danger [to] the community on release." (paragraph 23)
"The extent to which the appellant poses a risk to the United Kingdom after his release is, in my view, the heart of this appeal … it is also the central question for the balancing exercise involved in the conducive deportation decision and the decision as to whether any interference with family life would be proportionate." (paragraph 89)
"I have decided to allow the appeal against the decision to deport the appellant … my main reason is my finding on the risk of re-offending. I regard this as the most significant matter counting for deportation in the balancing exercise …" (paragraph 105)
"In this case the appellant has committed an extremely serious offence. If the risk that he would commit a similar offence again was anything other than very low I would conclude that his removal … would indeed be justified." (paragraph 109)
I agree with May LJ's conclusion that this appeal must be dismissed