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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> HM (Iraq) v The Secretary of state for the home department  EWCA Civ 1322 (20 October 2010)
Cite as:  EWCA Civ 1322
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ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/15661/2008]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE JACKSON
LORD JUSTICE PATTEN
| HM (Iraq)
|- and -
The Secretary of State for the Home Department
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Vikram Sachdeva (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction
Part 2. The Facts
Part 3. The Appeal to the Court of Appeal
Part 4. The Law
Part 5. Decision
"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; …"
"32 Automatic deportation
(1) In this section "foreign criminal" means a person-
(a) who is not a British citizen,
(b) who is convicted in the United Kingdom of an offence, and
(c) to whom Condition 1 or 2 applies.
(2) Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.
(3) Condition 2 is that -
(a) the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (c. 41) (serious criminal), and
(b) the person is sentenced to a period of imprisonment.
(4) For the purpose of section 3(5)(a) of the Immigration Act 1971 (c. 77), the deportation of a foreign criminal is conducive to the public good.
(5) The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33)."
(1) Section 32(4) and (5)—
(a) do not apply where an exception in this section applies (subject to subsection (7) below), and
(b) are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).
(2) Exception 1 is where removal of the foreign criminal in pursuance of the deportation order would breach—
(a) a person's Convention rights, or
(b) the United Kingdom's obligations under the Refugee Convention."
"1) Everyone has the right to respect for his private and family life, his home and his correspondence.
2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being 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."
It follows from section 33 of the 2007 Act that any foreign criminal who can bring himself within the protection of ECHR Article 8 will escape automatic deportation under section 32 of that Act.
"It is a tragedy to see you in the dock: you are a man of good character; you come from a loving and supporting family. You became addicted to cannabis. You were persuaded to help your drug dealer to keep his stash of ecstasy tablets, which were handed over to you in a public place, being a superstore car park. In other words, this is not possession so that you could buy for yourself and a few friends, this is helping a drug dealer look after his drugs and a custodial sentence must follow.
I regard this as a serious case. I accept entirely the written basis of the plea that is put forward. This is not the first occasion, however, upon which this has happened. You now realise how deep in you had got into the criminal world of drug dealing, and of course that trait can only take place if there are those who are willing to be exploited, as you were, in the hope that you would continue to receive your supply of cannabis. There must be a custodial sentence and I am unable to suspend it. Had you been convicted after a trial on count 1, I would have sentenced you to two years, and on count 2 six months concurrent. I give you credit for your guilty plea at the outset. You will be sentenced to 16 months on count 1 and 4 months concurrent on count 2. I declare that you received £487 in benefit: your assets of £250 are available. I order forfeiture of the car, one week in default of payment, six months to pay."
"57. Even if Article 8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court's case-law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision […]. In Boultif v Switzerland (2001) ECHR 54273/00 the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria … are the following:
-the nature and seriousness of the offence committed by the applicant;
- the length of the applicant's stay in the country from which he or she is to be expelled;
-the time elapsed since the offence was committed and the applicant's conduct during that period;
-the nationalities of the various persons concerned;
-the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;
-whether the spouse knew about the offence at the time when he or she entered into a family relationship;
-whether there are children of the marriage, and if so, their age; and
-the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and the country of destination.
As to the first point, the Court notes that this is already reflected in existing case law … and is in line with the Committee of Ministers' Recommendation Rec (2002)4 on the legal status of persons admitted for family reunification ….
As to the second point, it is to be noted that, although the applicant in the case of Boultif was already an adult when he entered Switzerland, the Court has held the 'Boultif criteria' to apply all the more so (à plus forte raison) to cases concerning applicants who were born in the host country or who moved there at an early age …. Indeed, the rationale behind making the duration of a person's stay in the host country one of the elements to be taken into account lies in the assumption that the longer a person has been residing in a particular country the stronger his or her ties with that country and the weaker the ties with the country of his or her nationality will be. Seen against that background, it is self-evident that the Court will have regard to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there.
59. The Court considered itself called upon to establish 'guiding principles' in the Boultif case because it had 'only a limited number of decided cases where the main obstacle to expulsion was that it would entail difficulties for the spouses to stay together and, in particular, for one of them and/or the children to live in the other's country of origin' …. It is to be noted, however, that the first three guiding principles do not, as such, relate to family life. This leads the Court to consider whether the 'Boultif criteria' are sufficiently comprehensive to render them suitable for application in all cases concerning the expulsion and/or exclusion of settled migrants following a criminal conviction. It observes in this context that not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy 'family life' there within the meaning of Art 8. However, as Art 8 also protects the right to establish and develop relationships with other human beings and the outside world … and can sometimes embrace aspects of an individual's social identity …, it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of 'private life' within the meaning of Art 8. Regardless of the existence or otherwise of a 'family life', therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his or her right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the 'family life' rather than the 'private life' aspect."
I shall refer to the eight criteria listed in paragraph 57 of Uner as criteria 1 to 8. I shall refer to the two criteria listed in paragraph 58 of Uner as criteria 9 and 10.
"71. In a case like the present one, where the person to be expelled is a young adult who has not yet founded a family of his own, the relevant criteria are:
– the nature and seriousness of the offence committed by the applicant;
– the length of the applicant's stay in the country from which he or she is to be expelled;
– the time elapsed since the offence was committed and the applicant's conduct during that period;
– the solidity of social, cultural and family ties with the host country and with the country of destination."
"73. In turn, when assessing the length of the applicant's stay in the country from which he or she is to be expelled and the solidity of the social, cultural and family ties with the host country, it evidently makes a difference whether the person concerned had already come to the country during his or her childhood or youth, or was even born there, or whether he or she only came as an adult. This tendency is also reflected in various Council of Europe instruments, in particular in Committee of Ministers Recommendations Rec (2001)15 and Rec (2002)4 (see paragraphs 34-35 above).
74. Although Article 8 provides no absolute protection against expulsion for any category of aliens (see Üner, cited above, § 55), including those who were born in the host country or moved there in their early childhood, the Court has already found that regard is to be had to the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up there and received their education there (see Üner, § 58 in fine).
75. In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile."
"20. As to private life, it is emphasised at para 56 of the Üner judgment that settled immigrants will have ties with the community that constitute part of the concept of private life, which must therefore be considered even if the applicant has no family life in the host country. The importance of this can be seen from the discussion, at para 52 of the same judgment, of the Assembly's recommendation and the legislation enacted in some states to the effect that long-term immigrants cannot be expelled on the basis of their criminal record. The Strasbourg court rejected the concept of absolute protection, recognising that there is a balance to be struck under article 8; but the court has emphasised that it is a balance to be struck with a proper appreciation of the special situation of those who have been in the host country since childhood.
21. Where the person to be deported is a young adult who has not yet founded a family life of his own, the subset of criteria identified in para 71 of the Maslov judgment  INLR 47 will be the relevant ones. Further, paras 72-75 of that judgment underline the importance of age in the analysis, including the age at which the offending occurred and the age at which the person came to the host country. This is pulled together in para 75: for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion; and this is all the more so where the person concerned committed the relevant offences as a juvenile."
"42. It may be that it can be argued that the appellant has established private life in the United Kingdom, and that Article 8 is engaged. Even if that were the case, although we do not find that the evidence supports this, his entitlement to exercise his private life in the United Kingdom is a qualified right, and he does not have the right to choose the place where he can exercise his private life and we find that he will be able to exercise his private life in Iraq if he is returned there.
43. For the reasons which we have given we have concluded that this is not a case which engages Article 8 of the ECHR. It is now necessary for us to consider paragraph 364 of the Immigration Rules."
There was no reason for the Irvine panel to be in doubt as to whether or not the appellant's private life in the United Kingdom had been established. This much had been conceded by the Secretary of State in his original letter dated 20 August 2008. Furthermore, Mr Sachdeva, counsel for the Secretary of State today, tells us that it was common ground at the hearing before the AIT that the appellant had established private life in the United Kingdom.
"…the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion."
As Pill LJ pointed out during argument, the panel does not grapple with this paragraph at all. The panel does not consider whether the reasons relied upon by the Secretary of State are sufficient to justify deporting to Iraq someone who has lived in this country since the age of twelve. Mr Sachdeva submitted that the appellant had not been lawfully in this country since the age of twelve, because it was only in May 2002 that indefinite leave to remain was granted to the appellant. I do not see any force in this submission. The appellant arrived as a boy of twelve with his mother and sisters in this country. The mother promptly made an application for asylum. That application was processed with some delay, no doubt due to the acute pressures that the Home Office was under. In due course, the asylum application was refused but leave to remain was granted. In my view, it cannot be said that an early part of the appellant's residence in this country should be characterised as unlawful in order to escape the effect of paragraph 75 of the Maslov decision. I do not see in the earlier paragraphs of the Irvine panel's determination any grappling with the issues raised by that paragraph.
Lord Justice Pill:
Lord Justice Patten:
Order: Appeal allowed. Case remitted to the Upper Tribunal for redetermination