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||Neutral Citation Number:  EWCA Civ 1139
||Case No:C/2001/0030 & 0052
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
THOMAS J (Samaroo)
OUSELEY J (Sezek)
||Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 17th July 2001
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE DYSON
SECRETARY of STATE for the HOME DEPARTMENT
SECRETARY of STATE for the HOME DEPARTMENT
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr N. Blake QC (Samaroo) Mr M. Bishop QC (Sezek) and Mr O. Raneshyar (instructed by Messrs T. Osmani for the Appellants)
Mr J. Howell QC and Mr S. Kovats (instructed by The Treasury Solicitor for the Respondent)
HTML VERSION OF JUDGMENT
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LORD JUSTICE DYSON:
- The appellants in both of these appeals are foreign nationals who were given permission to enter the UK many years ago. Both have put down roots and have established families here. Both were convicted of very serious drugs offences, and were made the subject of deportation orders by the Secretary of State under section 5(1) of the Immigration Act 1971, on the grounds that he deemed their deportation to be "conducive to the public good" (section 3(5)(b)). Allan Samaroo challenges the deportation order on the grounds that it would involve an interference with his right to family life under Article 8(1) of the European Convention on Human Rights ("the Convention"), and that such interference is not justified under Article 8(2). His application for judicial review was dismissed by Thomas J on 20 December 2000. Memet Sezek challenges the decision to deport him on the grounds that, as a Turkish national, he is protected from deportation by Decision 1/80 of the Association Council of the European Communities. His application was dismissed by Ouseley J on 21 December 2000.
- Mr Samaroo was born in Guyana in 1948. In 1983 he left Guyana and went to the United States. In June 1988 he arrived in the United Kingdom and was given permission to stay for six months as a visitor. In September of that year, he married Jennifer Camacho, who was also born in Guyana but had acquired British citizenship in 1987. She has been resident in the United Kingdom since 1969, and has three children by a previous relationship, of whom the youngest is Chaka Camacho who was born in 1982. She is the owner of a flat at 35 Maskeleyne Close, London SW11. She pays the mortgage payments on the flat from her earnings as a nurse. On 15th March 1990, Mr Samaroo was granted indefinite leave to remain in the United Kingdom as a foreign spouse. On 18th March 1991, a son, Jonathan, was born to the marriage.
- On 29th April 1994, Mr Samaroo was convicted of being knowingly concerned with the importation of four kilograms of cocaine worth approximately £450,000. In passing sentence at Isleworth Crown Court, His Honour Judge Thomas said that Mr Samaroo was "involved in the drug smuggling by others". He was "the London end … arranging matters … and in contact with others concerning this operation". He was sentenced to thirteen years imprisonment and recommended for deportation. Mr Samaroo became eligible for release on parole in February 2000, and he has been on bail or temporary release since the institution of these proceedings. Presently living at the flat are Mr and Mrs Samaroo, Chaka who is a university student, and Jonathan.
- On 30th April 1998, The Secretary of State made a deportation order. On 26th May 1998 Mr Samaroo appealed to a Special Adjudicator. He did not appear at the hearing and his appeal was dismissed. His application for leave to appeal to the Immigration Appeal Tribunal was dismissed on 13th April 1999. On 27th July 1999, Mr Samaroo's solicitors submitted to the Secretary of State a statement of case in support of his application for exceptional leave to remain in the United Kingdom on the grounds that he had been a model prisoner and had close family ties here. On 15th February 2000, the Secretary of State refused to grant exceptional leave to remain. He identified the following compassionate circumstances:
"(a) his marriage and the length of it and his relationship with his wife;
(b) the considerable length of his wife's residence in this country;
(c) the existence of Jonathan and his age, including the fact that he is a British citizen with his own independent right to live here and his relationship to his father;
(d) his step-children in the UK, their relationship to their step-father and the assertion that it is a close family unit;
(e) the length of time since he was last living in Guyana;
(f) the likely impact on the family should they ultimately choose to accompany him to Guyana, bearing in mind that all Mrs Samaroo's close family are here, the fact she is employed here and has responsibilities here;
(g) the evidence as to the effect on Jonathan of the present situation and the impact of future separation;
(h) the assertions as to Mr Samaroo's future prospects in Guyana;
(i) the fact that the family would be separated from Mr Samaroo should the family stay here;
(j) the fact that this was Mr Samaroo's first conviction; and
(k) the descriptions of the efforts and progress made by Mr Samaroo whilst in prison where he has variously been described as a model prisoner with an exemplary prison record."
- The Secretary of State went on to say that these factors were " of much weight". Against these "compassionate circumstances", however, the Secretary of State balanced the seriousness of the offence for which Mr Samaroo had been convicted, and concluded: " in light of the seriousness and nature of the offence the Secretary of State does not accept that it would be in the public interest to permit your client to benefit from the exercise of his discretion, exceptionally, on the basis of marriage and the other compassionate factors".
- He then went on to say that he had carefully considered Article 8. He said:
"In the normal way, both Mrs Samaroo and the children would be given the opportunity to accompany Mr Samaroo upon his deportation. Should the family choose to remain in the UK (as from the documents seems likely) the Secretary of State considers that on the facts of this case any interference with family life is necessary in the interests of a democratic society. This was a serious offence and the detrimental effects of drug importing are well known."
- Mr Samaroo thereupon applied for permission to apply for judicial review of the decision to refuse exceptional leave to remain. On 28th July 2000, his solicitors wrote to the Secretary of State providing further evidence about his lack of ties with Guyana. The Secretary of State reviewed the matter, but decided not to change his mind.
- Two witness statements by Stephen Still, a senior caseworker in the Immigration and Nationality Directorate of the Home Office, were placed before the judge. These amplify the position taken by the Secretary of State. In the first, Mr Still said that the Secretary of State regarded, inter alia, drug related offences, particularly those involving Class A substances, as "particularly serious and harmful to society". He accepted that the evidence indicated that Mr Samaroo was unlikely to re-offend. Nevertheless, he regarded Mr Samaroo's criminal conduct as "very serious". Mr Still dealt with the Article 8 point in the following way:
"25. In making this judgment the Secretary of State has borne in mind the provisions of the European Convention on Human Rights. This is the subject of the applicant's third main complaint, to which I now turn.
26. The Secretary of State accepts that the deportation of the applicant would interfere with his family life, particularly if his wife, child and stepchildren did not accompany him to Guyana. On the other hand the Secretary of State regards the maintenance of a firm but fair immigration policy as necessary for the economic well-being of the United Kingdom and for the prevention of disorder and crime. Moreover, he regards the deportation as a valuable deterrent to actual or prospective drug traffickers. As stated above, the Secretary of State regards trafficking in Class A drugs as one of the most serious of offences. Drug trafficking is also an offence which often has an international dimension. Immigration control plays an important part in the fight against drug trafficking. In all the circumstances, and accepting that the applicant personally is unlikely to re-offend, the Secretary of State has concluded that the interference with his family life which deportation would entail is necessary in a democratic society because of the applicant's criminal conduct."
- In his second witness statement, Mr Still elaborated upon the Secretary of States' position with regard to Article 8. He said that the Secretary of State acknowledged that Mr Samaroo may no longer have any meaningful family ties in Guyana. But he was a national of that country and had lived and worked there until 1983. He then said:
"Since his release from detention on bail in February of this year it seems, from the letter of 7th February, that he has been able to secure employment in the UK. There is nothing to suggest that he will not also be able to secure employment in Guyana and accommodation (if necessary). Indeed, it is plain from the reports of his time in prison that he has a wide range of skills. Moreover, he does not appear to have any health problems which would restrict the type of employment he could secure on return."
- Mr Still said that it was accepted that the most likely scenario appeared to be that Mrs Samaroo and her children would stay in the United Kingdom following Mr Samaroo's deportation. Accordingly, the Secretary of State had "primarily" assessed the case on that footing. The deportation would, therefore, interfere with Mr Samaroo's family life and that of his wife, son and other connected family members. At paragraph 9 of this witness statement, Mr Still amplified the position of the Secretary of State in relation to Article 8 (2). He said that the Secretary of State remained of the view that Mr Samaroo's deportation was "necessary in the interests of a democratic society for the prevention of disorder and crime and for the protection of health and morals". Whilst each case was considered on its facts, the Secretary of State had policies which underpinned the context in which each case was considered. Mr Still continued:
"As I stated in my witness statement of 2nd June 2000, the Secretary of State regards trafficking of Class A drugs as one of the most serious offences. In proposed deportation cases the Secretary of State sees a range of offences many of which are serious but do not necessarily have the same impact on the wider community as does the importation of Class A drugs. To protect the interests of those resident in this country from the harmful effects of drugs and in the interests of preventing disorder and crime, as a matter of general policy, the Secretary of State does not tolerate the continued presence in this country of those convicted of being concerned in the importation of Class A drugs. Each case must be considered carefully, however, with regard to the impact on the individuals involved resulting from any deportation. The Secretary of State has considered this case carefully and has put in the balance the points made on behalf of Mr Samaroo and his family. However, although Mr Samaroo points to various compassionate factors which are cumulatively strong, the Secretary of State has concluded that enforcement action remains appropriate. The Secretary of State has had regard to the fact that the sentencing judge considered it appropriate to make a recommendation that Mr Samaroo be deported. In so doing he had in mind the domestic effects of the sentence. Although the Secretary of State does not regard any such recommendation as determinative it is a matter to which he considers some weight should be given. The Secretary of State has however given particular weight in this case to the fact that Mr Samaroo was not simply a carrier of the drugs. He was a crucial part of the organisation. Indeed without those like Mr Samaroo and the role he played, as described by the trial judge, "it would be difficult for foreign businessmen to arrange smuggling of this sort". The Secretary of State attaches great weight to this element in the balance. He considers that the deportation of Mr Samaroo assists in the protection of the interests as outlined above. In his view the interference with the Convention rights in this case is indeed necessary in a democratic society for the protection of those interests."
- The essential facts that form the background to the decision under challenge are that:
(a) the offence of which Mr Samaroo was convicted was very serious;
(b) he had been described as a model prisoner during his period in prison;
(c) he was unlikely to reoffend;
(d) he no longer had any meaningful ties with Guyana;
(e) there was nothing to suggest that he would be unable to find work in Guyana;
(f) it was most unlikely that Mrs Samaroo would accompany him to Guyana if he were deported there;
(g) the family had strong ties.
- On these facts, the Secretary of State accepted that the deportation would be an interference with Mr Samaroo's right to respect for family life under Article 8(1). The question was whether such interference was necessary for the prevention of disorder or crime within the meaning of Article 8(2). The judge helpfully identified the issues that arose before him as follows:
(1) What is the relevant question which the Secretary of State had to ask when deciding whether the interference was necessary for the prevention of disorder or crime?
(2) What is the task of the court: is it to review the decision of the Secretary of State or to make up its own mind on the relevant question, and substitute its own view if it disagreed with the decision of the Secretary of State?
(3) What is the court's conclusion in the light of the answers to (1) and (2)?
As will become clear, the issue between the parties on (2) is now much narrower than it was before the judge.
What was the relevant question for the Secretary of State?
- It is accepted by Mr Blake QC that a deportation order made in respect of a person convicted of a serious criminal offence is a measure taken in pursuance of a legitimate aim, namely the prevention of crime and disorder, and (in the case of serious drug trafficking offences) the protection of the health, rights and freedoms of others. The issue that arises in this case is: given that this is a legitimate aim, how should the decision-maker decide whether deportation in a particular case is justified, knowing that it will involve interference with an Article 8(1) right? It is common ground that what is required is a proportionate response. There is no agreement, however, on the precise formulation of what proportionality entails in this context. Mr Blake submits that the correct question is:
"Is the proposed interference with the family in the circumstances of this case no more than is necessary to pursue the legitimate object of prevention of crime and the protection of the health of others by deterrence of others?"
- Accordingly, he submits, the Secretary of State should have asked himself whether his policy of preventing crime and disorder by deterring other potential criminals would be undermined if he were not to deport Mr Samaroo: would anything less than deportation do, having regard to the particular circumstances of the case, and the fact that, as the Secretary of State concedes, what he calls the "compassionate circumstances" are cumulatively strong, and the interference with the Article 8(1) right would be very serious. Mr Howell QC, on the other hand, submits that the correct approach for the Secretary of State was to strike a fair balance between the interests of the community (met by pursuing the legitimate aim) and the need to protect the individual's human rights.
- Mr Blake relies, in particular, on R (Daly) v Secretary of State for the Home Department  2 WLR 1622. That was a case concerning the lawfulness of a standard cell searching policy by which prisoners were excluded from their cells during searches. Legally privileged correspondence was examined in the absence of the prisoners. The House of Lords held that the policy was unlawful both on common law principles, and because it amounted to an unjustified interference with prisoners' rights under Article 8(1). Lord Bingham of Cornhill said at page 1633G:
"Article 8(1) gives Mr Daly a right to respect for his correspondence. While interference with that right by a public authority may be permitted if in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr Daly's exercise of his right under Article 8(1) to an extent much greater than necessity requires."
- Lord Steyn said at page 1634H:
"27. The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69 the Privy Council adopted a three stage test. Lord Clyde observed, at p.80, that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: "whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."
Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review."
- The whole of this passage in the speech of Lord Steyn (and what follows) is concerned with the nature and scope of review by the court where proportionality is in issue. But it is clear that what Lord Steyn said about proportionality was intended to be of general application. In explaining why the intensity of review is somewhat greater where proportionality is in issue than under the traditional grounds of review, Lord Steyn mentioned three concrete differences at 1635E:
"First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, Ex p Smith  QB 517, 554 is not necessarily appropriate to the protection of human rights."
- Mr Blake relies on these passages in support of his submission that the question for the Secretary of State was whether the proposed interference was no more than was necessary to pursue the legitimate aim of prevention of crime and disorder.
- In my judgment, Daly does not assist Mr Blake's argument. I accept the submission of Mr Howell that, in deciding what proportionality requires in any particular case, the issue will usually have to be considered in two distinct stages. At the first stage, the question is: can the objective of the measure be achieved by means which are less interfering of an individual's rights? Daly is a good example of this. The House of Lords plainly regarded the aim of the policy as legitimate: the aim was that of maintaining security, order and discipline in prisons. But their Lordships decided that this aim might justify the exclusion during examination of privileged correspondence of an individual prisoner who was attempting to intimidate or disrupt a search, or whose past conduct had shown that he was likely to do so. But a policy of routinely excluding all prisoners, whether intimidatory or not, amounted to a greater degree of intrusion into privileged correspondence than was justified by the objective that it was intended to serve. As Lord Bingham put it, the policy interfered with Mr Daly's Article 8(1) right "to an extent greater than necessity requires". The essential purpose of this stage of the inquiry is to see whether the legitimate aim can be achieved by means that do not interfere, or interfere so much, with a person's rights under the Convention. That inquiry must be undertaken by the decision-maker in the first place. I note that the three stage test propounded by Lord Clyde in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries , Lands and Housing  1 AC 69, 80 (cited by Lord Steyn in Daly) refers at his third stage to the question whether "the means used to impair the right or freedom are no more than is necessary to accomplish the objective" (my emphasis). Like Daly, that was a case concerning a blanket policy. The policy (contained in a statutory provision) was that communication by civil servants to any other person of any information or expressions of opinion on matters of national or international political controversy was forbidden. It was accepted by the Privy Council that the legislative objective was sufficiently important to justify limiting the fundamental right of freedom of expression, and that the measures designed to meet that objective were rationally connected to it. The measure failed at the third stage. It was disproportionate because it imposed the same restraints on the most junior civil servants as on the most senior. The means used to impair the freedom of expression were more than was necessary to achieve the legitimate object of ensuring the proper performance by civil servants of their functions. In other words, that object could have been achieved proportionately by restricting the interference with the freedom of expression to that of the more senior civil servants.
- At the second stage, it is assumed that the means employed to achieve the legitimate aim are necessary in the sense that they are the least intrusive of Convention rights that can be devised in order to achieve the aim. The question at this stage of the consideration is: does the measure have an excessive or disproportionate effect on the interests of affected persons? The case of Mr Samaroo engages this question. It is plain that in general terms the objective of preventing crime and disorder is sufficiently important to justify limiting a fundamental right, and that the deportation of those convicted of serious criminal offences (especially drug trafficking offences) is a measure that is rationally connected to that objective. The issue in such a case is not whether there is a less restrictive alternative to deportation as a means to achieve the objective. The sole question is whether deportation has a disproportionate effect on Mr Samaroo's rights under Article 8(1).
- What test should the Secretary of State apply in deciding that question? There are a number of decisions of the European Court of Human Rights in which the effect of expulsion orders made against convicted criminals on their Article 8(1) rights has been considered. An example is Boughanemi v France (1996) 22 EHRR 228. A Tunisian national had lived in France from the age of 8 for 20 years. He had been deported after being convicted of a number of serious criminal offences. He had returned illegally and formed a relationship with a French national whose child he acknowledged to be his. He complained that his deportation was in breach of Article 8. The Commission admitted the complaint saying that, despite the serious nature of the convictions that had led to the deportation, a fair balance had not been struck between the aims pursued and the right to respect for private and family life. The court took a different view. It said:
"41. The Court acknowledges that it is for the Contracting States to maintain public order, in particular by exercising their right, as a matter of well-established international law and subject to their treaty obligations, to control the entry and residence of aliens and notably to order the expulsion of aliens convicted of criminal offences.
However, their decisions in this field must, in so far as they may interfere with a right protected under Article 8(1), be necessary in a democratic society, that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. In determining whether the interference was "necessary", the Court makes allowance for the margin of appreciation that is left to the Contracting States in this field.
42. Its 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."
- The court held that there had been no violation of Article 8. The language of paragraphs 41 and 42 of this decision has been repeated more or less verbatim in many similar cases in the European Court of Human Rights: eg Bouchelkia v France (1997) 25 EHRR 228 paras 48, 49 and 53; Mehemi v France (EctHR 26 September 1997), paras 34 and 35.
- Mr Blake acknowledges that the European Court has said time and again that its task in such cases is to ascertain whether the deportation struck a fair balance between the relevant interests. He submits, however, that the court in Strasbourg has ultimately applied a "fair balance" test because it is an international court applying the doctrine of the margin of appreciation when performing an international scrutiny of the Convention throughout the Council of Europe. At the national level, however, different considerations apply.
- In my judgment, the fair balance test cannot be brushed aside so easily. The court has clearly said that the issue for it is to determine whether the deportation struck a fair balance between the relevant interests. That is what proportionality requires. In my view, the margin of appreciation does not affect the nature of the test to be applied or the question to be asked. It does, however, affect the assessment by the European Court of Human Rights of the answer that has been given by the Contracting States to the question. Provided that the court is satisfied that the right question has been asked by the Contracting State, it will allow for a margin of appreciation when deciding whether to decide that the wrong answer has been given.
- I would, therefore, hold that in a case such as the present, where the legitimate aim cannot be achieved by alternative means less interfering with a Convention right, the task for the decision-maker, when deciding whether to interfere with the right, is to strike a fair balance between the legitimate aim on the one hand, and the affected person's Convention rights on the other.
- It is important to emphasise that the striking of a fair balance lies at the heart of proportionality. In Sporring v Sweden  5 EHRR 35 at paragraph 69, the court said:
"…the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights….The search for this balance is inherent in the whole of the Convention…."
- This has been stated time and again by the European Court of Human Rights. A similar approach has been articulated by the Supreme Court of Canada. Thus in Ross v New Brunswick School District No 15  1 SCR 825, 872, La Forest J said that the principles of proportionality "should be applied flexibly, so as to achieve a proper balance between individual rights and community needs".
- Fair balance involves comparing the weight to be given to the wider interests of the community with the weight to be given to an individual's Convention rights. Some rights are regarded as of especial importance and should for that reason be accorded particular weight. Broadly speaking, the more serious the interference with a fundamental right and the graver its effects, the greater the justification that will be required for the interference.
The task for the court
- Thomas J, in a judgment of admirable clarity to which I would pay tribute, said the following:
"44. For these reasons, it is my view, on the present authorities, that the task of the court is not to make up its own mind on the question of proportionality. The decision-maker is the Secretary of State and it is he who must decide within his discretionary area of judgment whether the interference with family life by deportation is necessary in a democratic society, that is to say justified by a pressing social need, and in particular proportionate to the legitimate aim pursued. In that decision making process, he has in accordance with the Convention and the Human Rights Act, a discretionary area of judgment in achieving the necessary balance.
45. The task of the Court, in accordance with the jurisprudence of the European Court of Human Rights, is therefore supervisory of that discretionary area of judgment. The court must decide whether the Secretary of State has, within the discretionary area of judgment accorded to him, struck a fair balance, between the relevant interests, namely the applicant's right to respect for his private life and family life, on the one hand, and the prevention of crime and disorder, on the other. It will do so by subjecting his decision to intense and anxious scrutiny on an objective basis to see whether he could reasonably have concluded that the interference was necessary to achieve one of the legitimate aims set out in Article 8.2 and was proportionate. It is a task analogous to that considered by Lord Cooke of Thorndon in R v Chief Constable of Sussex ex p International Traders Ferry Ltd  2 AC 418 at 452-3. The burden, as Mr Howell for the Secretary of State accepted, is on the Secretary of State to persuade the Court that he has so acted."
- The judge reached this conclusion after a careful consideration of B v Secretary of State for the Home Department  Imm AR 478, R (Mahmood) v Secretary of State for the Home Department  1 WLR 840, R v DPP ex p Kebeline  3 WLR 972, and Procurator Fiscal v Brown  2 WLR 817 (PC). In my view, it is now sufficient to have regard to Mahmood read in the light of Daly. In Mahmood, Laws LJ said (paragraph 33) that even where the courts are in as good a position as the Secretary of State to decide an issue which engages Convention rights, they must not do so as if they were his surrogate. What he called a "margin of discretion" must be allowed to the statutory decision-maker. Lord Phillips of Worth Matravers MR identified the following three principles (paragraph 37):
"(1) Even where human rights were at stake, the role of the court was supervisory. The court would only intervene where the decision fell outside the range of responses open to a reasonable decision-maker. (2) In conducting a review of a decision affecting human rights, the court would subject the decision to the most anxious scrutiny. (3) Where the decision interfered with human rights, the court would require substantial justification for the interference in order to be satisfied that the response fell within the range of responses open to a reasonable decision-maker. The more substantial the interference, the more that was required to justify it."
- At paragraph 38, he amplified the first principle as follows:
"The court does not substitute its own decision for that of the executive. It reviews the decision of the executive to see whether it is permitted by law—in this instance the Human Rights Act 1998. In performing this exercise the court will bear in mind that, just as individual states enjoy a margin of appreciation which permits them to respond, within the law, in a manner which is not uniform, so there will often be an area of discretion permitted to the executive of a country before a response can be demonstrated to infringe the Convention"
- In amplifying his third principle, Lord Phillips said:
"When anxiously scrutinising an executive decision that interferes with human rights, the court will ask the question, applying an objective test, whether the decision-maker could reasonably have concluded that the interference was necessary to achieve one or more of the legitimate aims recognised by the Convention."
- It was this passage which in Daly Lord Steyn said required "clarification" on the grounds that it was couched in language reminiscent of the Wednesbury ground of review. But I can detect no other criticisms of Mahmood in Daly. Lord Steyn said that the intensity of review is "somewhat greater under the proportionality approach" than under the traditional grounds of review (1635D). Having referred to the case of Smith and Grady v UK (1999) 29 EHRR 493, he said:
"In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued."
- But, as Lord Steyn made clear (1636B), this does not mean that there has been a shift to a merits review: "on the contrary, as Professor Jowell  PL 671, 681 has pointed out, the respective roles of judges and administrators are fundamentally distinct and will remain so".
- Accordingly, the function of the court in a case such as this is to decide whether the Secretary of State has struck the balance fairly between the conflicting interests of Mr Samaroo's right to respect for his family life on the one hand and the prevention of crime and disorder on the other. In reaching its decision, the court must recognise and allow to the Secretary of State a discretionary area of judgment. In considering the particular factors to which the court will have regard in deciding to what extent (if at all) to defer to the opinion of the Secretary of State, I have been assisted by the discussion at paragraph 3.26 of Human Rights Law and Practice (1999), of which Lord Lester of Herne Hill QC and David Pannick QC are the general editors. They identify the following factors: (a) The nature of the Convention right: is the right absolute or (as in the case of Article 8) does it require a balance to be struck? The court is less likely to defer to the opinion of the decision-maker in the former case than the latter; (b) The extent to which the issues require consideration of social, economic or political factors. The court will usually accord considerable deference in such cases because it is not expert in the realm of policy-making, nor should it be because it is not democratically elected or accountable; (c) The extent to which the court has special expertise, for example in relation to criminal matters; (d) Where the rights claimed are of especial importance, a "high degree of constitutional protection" will be appropriate. The European Court of Human Rights has recognised as being of especial importance rights to freedom of expression and access to the courts.
- Mr Blake submits that the interference on the grounds of penal policy for the protection of others places the subject matter of the justification for interfering with such rights into a class that is within the experience and competence of the court to evaluate, so that it is not one that requires an especially wide margin of discretion to the discretion of the decision-maker. In my judgment, in a case such as this, the court should undoubtedly give a significant margin of discretion to the decision of the Secretary of State. The Convention right engaged is not absolute. The right to respect for family life is not regarded as a right which requires a high degree of constitutional protection. It is true that the issues are not technical as economic and social issues often are. 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  1NLR 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.
- The European Court has on many occasions upheld deportation orders made against drug trafficking offenders even where there has been the most serious interference with Article 8 rights. In Caglar v Germany, application 62444/00 (2000) 7 December, the court declared as inadmissible a complaint of breach of Article 8 in these circumstances. The applicant was a Turkish national. He was 55 years of age and had spent 30 years living in Germany. He was convicted of a heroin-related offence and was sentenced to 7 years' imprisonment and then made the subject of an expulsion order to Turkey. His wife was suffering from serious psychiatric problems. She needed his presence, and could not be expected to follow him to Turkey. In the usual way, the court said that its task was to determine whether "the measure in issue struck a fair balance between the conflicting interests, namely, on the one side, the applicant's right to respect for his private and family life, and, on the other, the prevention of disorder or crime". The court then said this:
"The offence indisputably constituted a serious breach of public order and undermined the protection of the health of others. In view of the devastating effects of drugs on people's lives, the Court appreciates why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge (see the Dalia v France judgment of 19 February 1998, Reports 1998-I, p.92 *54). Although the applicant's removal from Germany would involve considerable hardship, the Court considers, in the light of the foregoing, and taking into account the margin of appreciation left to the Contracting States in such circumstances (see the Boughanemi v France judgment of 24 April 1996, Reports 1996 II, p 610, *41), that the decision to expel the applicant was not disproportionate to the legitimate aims pursued. There is therefore no appearance of a violation of Article 8."
- Mr Blake relies strongly on the fact that the deportation order has confronted Mrs Samaroo with an agonisingly difficult decision. To accompany her husband to Guyana would mean the loss of her job; the loss of her ability to pay the mortgage on her home; the loss of her home; the loss of daily contact with her parents and her older children; and the loss of a decent education for Jonathan. To remain in the United Kingdom performing her role as mother, breadwinner and family member would separate her and Jonathan from her husband and his father indefinitely. Faced with this dilemma, she has decided that she cannot leave the United Kingdom. In a word, Mr Blake submits, the effect of the deportation is to undermine the very essence of the right to respect for family life. He says that particularly powerful reasons are needed to justify a deportation on public policy grounds in this case, since Mr Samaroo has been lawfully resident in the UK for 12 years; he has been convicted of a single (albeit very serious) offence; he is not considered to be likely to re-offend; the sole or principal justification for the enforcement of deportation action against a reformed prisoner at the conclusion of his sentence is the deterrence of others; and such enforcement will break up the family, separating wife from husband and father from child. Mr Blake submits that the reasons relied on by the Secretary of State are not sufficient to justify the very serious interference with the Article 8(1) right that results from the deportation order. The Secretary of State has not explained why his policy of deporting those who have been convicted of very serious drug trafficking offences requires the destruction of the right to family life in a case such as this. In other words, he has not shown why his policy would not stay intact if he refrained from making a deportation order in this case.
- In my judgment, it is not incumbent on the Secretary of State to prove that the witholding of a deportation order in any particular case would seriously undermine his policy of deterring crime and disorder. That would be to ask the impossible. Proof is not required. The subject matter is such that proof is usually impossible. What is required is that the Secretary of State justify a derogation from a Convention right, and that the justification be "convincingly established": Barthold v Germany (1985) 7 EHRR 383, 403. In asking whether the justification has been convincingly established, the domestic court (as indeed the court in Strasbourg) should consider the matter in a realistic manner, and always keep in mind that the decision-maker is entitled to a significant margin of discretion. The Secretary of State must show that he has struck a fair balance between the individual's right to respect for family life and the prevention of crime and disorder. How much weight he gives to each factor will be the subject of careful scrutiny by the court. The court will interfere with the weight accorded by the decision-maker if, despite an allowance for the appropriate margin of discretion, it concludes that the weight accorded was unfair and unreasonable. In this respect, the level of scrutiny is undoubtedly more intense than it is when a decision is subject to review on traditional Wednesbury grounds, where the court usually refuses to examine the weight accorded by the decision-maker to the various relevant factors.
- In my judgment, the challenge by Mr Samaroo must be rejected. It is not contended that the Secretary of State failed to have regard to a relevant factor, or took into account an irrelevant factor. What is said is that the justification for a most serious interference with his and his family's rights under Article 8(1) is not made out. In my judgment, the Secretary of State was entitled to regard Class A drug trafficking offences as very serious, and ones which are particularly serious and harmful to society. He was entitled to attach importance to his general policy of deporting those convicted of importation of Class A drugs in order to protect those resident in the UK from the harmful effects of drugs and, by deterring others, in the interest of preventing crime and disorder. As the Court of Human Rights said about a drug courier in D v UK (1997) 24 EHRR 423, paragraph 46:
"The court recalls at the outset that Contracting States have the right, as a matter of well established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. It also notes the gravity of the offence which was committed by the applicant and is acutely aware of the problems confronting Contracting States in their efforts to combat the harm caused to their societies through the supply of drugs from abroad. The administration of severe sanctions to persons involved in drug trafficking, including expulsion of alien drug couriers like the applicant, is a justified response to this scourge"
- I have earlier referred to a similar passage in Caglar v Germany. The Secretary of State was also entitled to attach particular weight to the fact that Mr Samaroo's role in the offending was important: he was a "crucial part of the organisation", and "without those like Mr Samaroo and the role that he played, it would be difficult for foreign businessmen to arrange smuggling of this sort". He was entitled to place great weight on all these factors. He then had to strike a fair balance between these factors and the serious interference with the right to respect for Mr Samaroo's rights under Article 8(1). It seems to me that this is precisely what he did. He came to the conclusion that the scales came down in favour of interference. It is true that the effect of the deportation will be to break up the family. That is accepted by the Secretary of State. But in my view, this was a fair and reasonable conclusion that he was entitled to reach.
- Mr Blake complains that the Secretary of State has not explained why he was of the view that the scales came down in favour of deportation. But it is difficult to see what more the Secretary of State could have done. He identified the factors that he took into account and the weight he placed on them. There can be no valid criticism of the weight he accorded to the individual factors relied on in support of deportation. It is not suggested that he left out of account any factor that was relevant to the weight to be given to the Article 8 (1) right. Ultimately, the complaint is that the Secretary of State should have concluded that the balance came down against deportation. In my judgment, the Secretary of State has adequately explained why he concluded as he did. No decision of the European Court of Human Rights was cited to us which indicates that, in a case such as this, the decision-maker is required to provide a more detailed justification for his decision than the Secretary of State has done here.
- I would, therefore, dismiss the appeal of Mr Samaroo.
- Mr Sezek is a Turkish national who was born in 1952. He first came to the United Kingdom in 1976 when he was granted leave to remain as a business man. In 1983 he was granted indefinite leave to remain, as were his Turkish wife and daughter. In 1991, his wife and daughter were granted British nationality; his application for nationality was refused. I shall later examine the history of his employment between 1986 and 1990 in some detail. On 21st April 1994 he was convicted at Chelmsford Crown Court of being knowingly concerned in the importation of 34 kg of heroin (worth approximately £4m), and was sentenced to 16 years imprisonment. In January 1995, he was served with a notice of intention to deport under section 3(5)(b) of the Immigration Act 1971, on the grounds that his continued presence in the United Kingdom was not conducive to the public good. Mr Sezek appealed to the Immigration Appeal Tribunal on the grounds that his deportation would break up the family. On 31st January 1996, the IAT dismissed his appeal on the grounds that the family had strong links with Turkey. On 22nd April 1999, the Secretary of State made the deportation order. Following representations by Mr Sezek's solicitors, the Secretary of State wrote on the 20th May 1999 saying that he did not accept that Mr Sezek's "circumstances are sufficiently compelling or compassionate to override the seriousness of his conviction". On 27th October 1999, the Secretary of State refused Mr Sezek's request that he revoke the deportation order. Mr Sezek sought judicial review of the deportation order and the decision of the Secretary of State to refuse to revoke the order. Ouseley J dismissed his application. Mr Sezek now appeals to this court.
- The Ankara agreement of 1963 between the European Community and Turkey provided for the eventual accession of Turkey to the Community. Under Article 12 of that Agreement, the Contracting Parties agreed to be guided by Articles 48-50 of the Treaty establishing the Community for the purpose of progressively securing freedom of movement of workers between them. Article 36 of the Additional Protocol of 1970 provided that freedom of movement for workers between Member States of the Community and Turkey should be secured in progressive stages in accordance with the principles set out in Article 12.
- Section 1 of Chapter II of Decision 1/80 of the Association Council addressed questions relating to employment and the free movement of workers. Article 6 of that Decision provided that:
"1. …. a Turkish worker duly registered as belonging to the labour force of a Member State:
- shall be entitled in that Member State, after one year's legal employment to the renewal of his permit to work for the same employer, if a job is available;
- shall be entitled in that Member State, after three years of legal employment and subject to the priority to be given to workers of Member States of the Community, to respond to another offer of employment, with an employer of his choice, made under normal conditions and registered with the employment service of that State, for the same occupation;
- shall enjoy free access in that Member State to any paid employment of his choice, after four years of legal employment.
2. Annual holidays and absences for reasons of maternity or an accident at work or short periods of sickness shall be treated as periods of legal employment. Periods of involuntary unemployment duly certified by the relevant authorities and long absence on account of sickness shall not be treated as periods of legal employment, but shall not affect rights acquired as the result of the preceding period of employment.
3. The procedures for applying paragraphs 1 and 2 shall be those established under national rules."
Article 14(1) provided that:
"The provisions of this section shall be applied subject to limitations justified on the grounds of public policy, public security or public health"
It is common ground that: (a) the rights conferred by Article 6(1) of Decision 1/80 have direct effect, notwithstanding Article 6(3); (b) although Article 6(1) governs the rights of a person only as a worker, the provision necessarily implies a correlative right of residence; and (c) where a person enjoys rights under Article 6(1), they may only be limited in accordance with Article 14 (1). Before this court, the Secretary of State accepts that it would be unlawful for him to deport a person who enjoys rights under Article 6(1) of Decision 1/80 which give him a correlative right of residence, unless such action is justified under Article 14(1).
The issues that arise on this appeal are:
(1) Does Mr Sezek have rights under the third indent of Article 6(1) of Decision 1/80 in that, by the time of the deportation order, (a) he had enjoyed at least 4 years of legal employment, and (b) he was "duly registered as belonging to the labour force" of the United Kingdom? (2) If yes, was deportation justified under Article 14 (1)?
It is accepted by Mr Bishop QC that, if Mr Sezek does not have rights under the third indent of Article 6(1), this appeal must be dismissed.
Does Mr Sezek have rights under the third indent of Article 6(1)?
Four years employment
It is submitted on behalf of Mr Sezek that he was employed by Bodrum Restaurants from 1 May 1986 to 24 December 1990. The evidence relied upon consists of the following. There is a letter dated 10 July 2000 from Mr Kolchak, the proprietor of Bodrum Restaurants in which he says:
"We have consulted our existing records and established that Memet Sezek was employed in our restaurants from 1st May 1986 to 24th December 1990 inclusively. Mr Sezek left his employment in our restaurants voluntarily to start his own restaurant business during the Christmas period of 1990"
Mr Kolchak has also signed a Statement of Truth dated 5th August 2000 in which he repeats what he said in the letter. The other material relied on by Mr Bishop is a letter from the Inland Revenue dated 4th August 2000 which summarises Mr Sezek's national insurance contributions for the years 1986/87 to 1990/91 as follows:
"Tax Year Contributions Earnings Factor Credit
.. .. .. ..
1986/87 Nil 1406.00 37 Unemployment"
1987/88 178.50 Class 1 2550.00 Nil
1988/89 291.20 Class 1 4160.00 Nil
1989/90 309.14 Class 1 4780.00 Nil
1990/91 115.60.Class 1 2828.00 18 Unemployment"
Mr Bishop submits that the record of national insurance contributions support Mr Sezek's case that he was in employment for at least 4 years during the period 1986 to 1990. He argues that it shows that Mr Sezek was employed for 15 weeks during 1986/7; was fully employed during the three years 1987/88, 1988/89 and 1989/90; and that he was employed for 34 weeks during the year 1990/91. He adds the 15 weeks (1986/87) to the 34 weeks (1990/91) to arrive at 49 weeks to which he adds the three years' continuous employment in the intervening period. Mr Bishop finds the missing balance of three weeks in Mr Sezek's entitlement to three weeks annual holiday, and he points out Mr Sezek told the police that he went to Turkey on holiday in August 1990. In this way, Mr Bishop submits that Mr Sezek's employment was for a continuous period of no more and no less than four years.
The Secretary of State has concluded, however, that Mr Sezek was not employed for four years. He makes the following points. As regards the date on which tax payments started, the National Insurance records show that Mr Sezek made no contributions in 1986/87. The P35 tax returns submitted by Anglovista Limited, the company which traded as Bodrum Restaurants, go back to 1986. There are entries for Mr Sezek for the tax years 1987/88 to 1990/91 (but no earlier). These records, therefore, indicate that Mr Sezek started work at the Bodrum restaurant after 5th April 1987. As for the date on which employment ended, the Benefit Agency records show that Mr Sezek claimed unemployment benefit from 10th September 1990. This is consistent with the National Insurance and tax records. It is also consistent with the account that he gave to the police at interview in 1991, when he said that he had gone on holiday in August 1990 and had not worked since.
Mr Howell QC submits that this evidence shows plainly that Mr Sezek did not start his employment with Bodrum Restaurants until 5th April 1987 at the earliest, and that his employment ceased in September 1990 at the latest. Moreover, Mr Howell points out that, although Mr Kolcak said that he had consulted his "existing records", no records have been disclosed. He submits that, in these circumstances, the conclusion of the Secretary of State that Mr Sezek had not been in legal employment for four years is unchallengeable. I can see no answer to this submission. The onus is on Mr Sezek to show that he satisfies the requirements of the third indent of Article 6(1) of Decision 1/80. In my judgment, he comes nowhere near doing so. That is sufficient to dispose of Mr Sezek's appeal. But, since the second point arising under the first issue was fully argued, I shall go on to consider whether at the date of the deportation order, he was duly registered as belonging to the labour force.
Duly Registered as Belonging to the Labour Force
The judge held that the Secretary of State "was fully entitled to conclude that the claimant had ceased to belong to the workforce when he was sentenced to so long a period as sixteen years imprisonment without appeal against conviction or sentence" (paragraph 21 of the judgment). Mr Bishop submits that this conclusion of the judge was wrong. He relies on Nazli v Stadt Nurnberg [2000 ECJ 1-957] for the proposition that, once a Turkish worker has a history of four years legal employment, he has full residence rights which can only be removed pursuant to Article 14 of Decision 1/80, and that a long absence from the workforce does not make that absence permanent, unless there is no possibility of rejoining it. Nazli was a case which concerned the expulsion from Germany of a Turkish worker, and the application of Articles 6(1) and 14(1) of Decision 1/80. The worker had been in legal employment for almost ten years without interruption. He was then detained pending trial for thirteen months in connection with an offence which he had committed, and for which he ultimately received a suspended prison sentence. The question that was referred to the ECJ was whether, while he was detained pending trial, Mr Nazli continued to be registered as belonging to the labour force of the host Member State within the meaning of Article 6(1). The court said:
"38. The Court has held, however, that Article 6 of Decision No 1/80 relates not only to the situation where a Turkish worker is in active employment but also to the situation where he is incapacitated for work, provided that his incapacity is only temporary, that is to say it does not affect his fitness to continue exercising his right to employment granted by that decision, albeit after a temporary break in his employment relationship (see Bozkurt, cited above, paragraphs 38 and 39).
39. Thus, while the right of residence as a corollary of the right to join the labour force and to be actually employed is not unlimited, the rights granted by Article 6(1) of Decision No 1/80 are necessarily lost only if the worker's inactive status is permanent.
40. In particular, while legal employment for an uninterrupted period of one, three or four years respectively is in principle required in order for the rights provided for in the three indents of Article 6(1) to be established, the third indent of that provision implies the right for the worker concerned, who is already duly integrated into the labour force of the host Member State, to take a temporary break from work. Such a worker thus continues to be duly registered as belonging to the labour force of that State provided that he actually finds another job within a reasonable period, and therefore enjoys a right to reside there during that period.
41. It follows from the foregoing considerations that the temporary break in the period of active employment of a Turkish worker such as Mr Nazli while he is detained pending trial is not in itself capable of causing him to forfeit the rights which he derives directly from the third indent of Article 6(1) of Decision 1/80, provided that he finds a new job within a reasonable period after his release.
42. A person's temporary absence as a result of detention of that kind does not in any way call into question his subsequent participation in working life, as is moreover demonstrated by the main proceedings, where Mr Nazli looked for work and indeed found a steady job after his release."
In my judgment, Nazli does not support Mr Bishop's argument. It shows that, when a worker suffers a temporary break from work, he nevertheless continues to be duly registered as belonging to the labour force of the Member State provided that he finds another job within a reasonable period. A "temporary" absence as a result of a detention pending trial is not inconsistent with his continuing to be duly registered as belonging to the labour force of the State. That is not sufficient for Mr Bishop's purposes.
In the case of Tetik [1997 ECR 1-329], a Turkish national was employed in Germany for about eight years. He then terminated his employment and became unemployed. Eleven days later, after the expiry of his residence permit, he applied for a new residence permit for the purpose of seeking unspecified employment. One of the questions for the court was whether, if a Turkish worker terminates his employment voluntarily, and not, for example on health grounds, and thereafter applies for a residence permit, he loses his right to be granted such a permit. The court said:
"30. Nevertheless, a Turkish worker such as the appellant in the main proceedings must be able, for a reasonable period, to seek effectively new employment in the host Member State and must have a corresponding right of residence during that period, notwithstanding the fact that he himself terminated his previous contract of employment without entering immediately into a new employment relationship.
31. As the Commission has convincingly argued, to give full effect to the third indent of Article 6(1) of Decision 1/80 a Turkish worker must, after at least four years of legal employment in a Member State, be entitled to leave his employment on personal grounds and, for a reasonable period, seek new employment in the same Member State, since his right of free access to any paid employment of his choice within the meaning of that provision would otherwise be deprived of its substance."
The court then turned to Article 6(2) and said:
"38. The second sentence of Article 6(2) relates to periods of inactivity due to long-term sickness or involuntary unemployment, that is to say, where the failure to work is not attributable to any misbehaviour on the part of the worker (as also follows from the use of the adjective 'unverschuldet' in the German version). It provides that, although periods of inactivity of this type cannot be treated as periods of legal employment, they do not affect rights which the worker has acquired as the result of preceding periods of legal employment.
39. The sole purpose of this latter version is therefore to prevent a Turkish worker who recommences employment after having been forced to stop working because of long-term illness or unemployment through no fault of his own from being required, in the same way as a Turkish national who has never previously been in paid employment in the Member State in question, to recommence the periods of legal employment envisaged by the three indents of Article 6(1) "
It follows that (i) a Turkish worker, who becomes unemployed voluntarily, ceases to belong to the labour force of the Member State if he or she fails to obtain new employment in that state within a reasonable period; and (ii) periods of involuntary inactivity, where the failure to work is not attributable to any misbehaviour on the part of the worker, do not cause the worker to cease to be registered as belonging to the labour force of the Member State. In the present case, it is clear that Mr Sezek's inactivity during his detention following his conviction was involuntary, but was attributable to his misbehaviour. He cannot avail himself of the saving provision that appears in the second sentence of Article 6(2). In my judgment it is plain that Mr Sezek ceased to be duly registered as belonging to the labour force of the United Kingdom when he was detained following conviction.
It follows that at the date of the deportation order, Mr Sezek had no rights under the third indent of Article 6(1) because (i) he did not satisfy the requirement of four years' employment, and (ii) he ceased to be duly registered as belonging to the labour force of the United Kingdom upon his detention following conviction. It is, therefore, not necessary to consider the Article 14 point. For these reasons, I would dismiss this appeal.
LORD JUSTICE THORPE:
I agree that these appeals should be dismissed and for the reasons so clearly and comprehensively stated by my Lord.
I also agree.
ORDER: Appeal dismissed; detailed assessment; application to appeal to the House of Lords refused in the case of Samaroo.
(Order does not form part of approved Judgment)
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