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Case No: CO/4973/1999
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 20th December 2000
THE HON. MR JUSTICE THOMAS
The SECRETARY OF STATE FOR THE HOME DEPARTMENT
ALLAN ALEXANDER SAMAROO
(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)
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Nicholas Blake QC and Osama Daneshya (instructed by T Osmani) for the Applicants
John Howell QC and Steven Kovats (instructed by the Treasury Solicitor) for the Respondent
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As Approved by the Court
Crown Copyright ©
MR JUSTICE THOMAS:
1. In April 1994 the applicant was found guilty of an offence of being concerned in the importation of 4 kg of cocaine and was sentenced to 13 years imprisonment and recommended for deportation. He was refused leave to appeal. A deportation order was made against him in April 1998. In November 2000, the Secretary of State made his final decision not to revoke the order. The applicant now applies for a declaration that his removal from the UK pursuant to a deportation order made on him would be a violation of Article 8 of the European Convention on Human Rights and for the quashing of the decision of November 2000 not to revoke the deportation order. He contends that the Secretary of State misdirected himself as to the proper test to apply and that in any event the decision to deport was disproportionate to the effect it will have on his family. Before considering the arguments advanced it is necessary to set out the facts.
The factual background
2. The applicant is a citizen of Guyana and was born there in February 1948. He left Guyana for the USA in 1983; in June 1988, at the age of 40, he moved to the United Kingdom and was given leave to enter for 6 months as a visitor.
3. Three months later, in September 1988 he married Jennifer Alitia Camacho. He had known her since his school days and had remained in communication with her. She had arrived in the United Kingdom in 1969 when she was 16; she had had three children from a previous relationship who were born respectively in 1972, 1976 and 1982. She had obtained British Citizenship in 1987.
4. In March 1989, the applicant was given leave to remain in the United Kingdom for 12 months as a foreign spouse and on 15 March 1990 was granted indefinite leave to remain in the United Kingdom as a foreign spouse. On 18 April 1991, a son, Jonathan, was born to the applicant and his wife.
5. In June 1993 the applicant was arrested at Heathrow Airport for being concerned with the importation of 4 kg of cocaine; its street value was then estimated to be £450,000. He was tried with others at the Isleworth Crown Court and convicted. On 29 April 1994 he was sentenced to a period of 13 years imprisonment by His Honour Judge Thomas; no order under the Drug Trafficking Act was made. In his sentencing remarks the judge said:
"Allan Samaroo, yours was a different role in this case. You were part of the organisation. I have to sentence you for your part in the smuggling, not only by Mrs Jetoo but also by Mr and Mrs Figueira [these were co-defendants]. The total value of the goods was almost £450,000 on the English black market. You as appeared clearly from the evidence, were the London end leasing, arranging matters with your old friend Mr Ashraf and in contact with the others concerned in the operation.
Yours was a role without which it would be very difficult for foreign businessmen to arrange smuggling of this sort. There are reasons to suppose as your counsel has argued.
Taking account of all the evidence I have heard and in particular the matters he has referred to in his address to me today that your role was slightly less than that of Mr Ashraf, as to whom of course I make no decisions today. In those circumstances I sentence you on each of the three counts upon which you appear before you to 13 years imprisonment concurrently making a total of 13 years. In your case I also recommend that you be deported.
I have taken account of all the matters which are raised in mitigation including the domestic effects of the sentencing in reaching the sentence that I impose. I make no financial order in your case either."
6. On 30 April 1998 a deportation order against the applicant was signed under the Immigration Act 1971. It was served on the Applicant on 17 December 1999 three days before he was due to be released from the prison sentence imposed by Judge Thomas. He was therefore detained in custody pursuant to the deportation decision until 21 February 2000 when he was released on bail on the grant of permission to bring this application.
7. Mrs Samaroo has been a nurse employed at the Hammersmith Hospital since 1988. She owns a house upon which she pays the mortgage and which is the family home for her, the applicant and the three children of the family - their own child and two of the children from Mrs Samaroo's previous relationship. The evidence before the court was that the family unit is a close one.
8. On 27 July 1999, the applicant through his solicitor applied through the Secretary of State for exceptional leave to remain; it was a detailed submission accompanied by many documents, although the submission was not received by the Secretary of State until 3 December 1999. On the 15 February 2000, the Secretary of State refused leave. The decision concluded:
"In light of all the known factors, the Secretary of State does not consider Mr Samaroo's personal circumstances are sufficiently exceptional as to outweigh the strong public interest served by his deportation. Consequently, he is not prepared to revoke the deportation order against Mr Samaroo nor allow him to remain in the United Kingdom on an exceptional basis outside of the Immigration Rules."
Further decisions following the grant of permission to apply for judicial review
9. As set out in the witness statement of Mr Stephen Still, a senior caseworker in the Immigration and Nationality Directorate of the Home Office, the Secretary of State again reviewed the applicant's case following the grant of permission. He did so on the basis of the applicant's skeleton argument used at the permission hearing which made three specific complaints. Mr Still's witness statement dated 2 June 2000 set out the response of the Secretary of State on each of those matters.
10. On 28 July 2000 the applicant's solicitors sent a new skeleton argument dated 18 July 2000 together with some further information; they asked the Secretary of State to reconsider his decision in the light of that material. That material and a letter from the Inner London Probation Service dated 7 November 2000 were considered by the Secretary of State, as set out in the second witness statement of Mr Still dated 30 November 2000. That second witness statement set out the Secretary of State's reasons why the deportation of the applicant assisted in the protection of the public interest and why the interference with the convention right was necessary in a democratic society for the protection of those interests.
The grounds of the application
11. Although the original application contained many grounds, one ground alone was pursued by the applicant - that the decision to confirm the deportation order violated Article 8:
"(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 was common ground that, as the final and relevant decision was made in November 2000, the Human Rights Act 1998 applied.
The issues before the Court
12. The essential factual findings relevant to the application of Article 8 were common ground:
(1) The offence of which the applicant had been convicted was very serious.
(2) The applicant had been described as a model prisoner during his period in prison.
(3) The applicant was unlikely to re-offend.
(4) The applicant no longer had any meaningful family ties in Guyana.
(5) As the Applicant has been able to secure work in the UK, there was nothing to suggest that he would not be able to find work in Guyana.
(6) The most likely scenario was that Mrs Samaroo would stay in the UK, if the applicant was deported.
(7) The family had strong ties.
13. On those facts, it was accepted that the deportation would be an interference with the right to respect to family life under Article 8.1, but the question was whether it was necessary for the prevention of crime within the scope of Article 8.2. There were three issues before the court:
(1) What is the relevant question which the decision-maker had to ask?
(2) What is the court's task - to review the decision of the Secretary of State or should it make up its own mind on the relevant question and substitute its view if it disagrees with the decision of the Secretary of State?
(3) What is the court's conclusion in this case in the light of the answers to (1) and (2)?
Issue 1: What was the relevant question that the decision-maker had to ask?
14. It was common ground that the deportation would on the facts of this case amount to an interference with the right under Article 8.1. Mr Blake QC, who appeared for the applicant, did not dispute that the Secretary of State was entitled to maintain a general policy of future deterrence through the deportation of an alien which could be justified in terms that there was a pressing social need for the prevention of crime. It was the application of that policy to the circumstances of this case that was the issue.
15. Mr Blake QC therefore contended that the test in this case could be expressed:
"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?"
16. He relied on a number of cases in the jurisprudence of the European Court of Human Rights (to which I shall refer) and on the decision of the Court of Appeal in B v The Secretary of State for the Home Department  Imm AR 478. B was an EU national who had been convicted of offences involving persistent sexual abuse of his daughter; no recommendation of deportation had been made by the sentencing court. The Secretary of State decided that he should be deported. B exercised his right of appeal in such a case to the Immigration Appeal Tribunal. B contended that as he had lived in the UK from the age of five and lived the whole of his adult life in the UK, returning him to his country of origin would be tantamount to exile and disproportionate to his offending. His appeal was rejected. On B's further appeal to the Court of Appeal, which only lay on a point of law, the Court decided that deportation was disproportionate in the light of his long residence in the UK. Two relevant issues arose - the test to be applied under Article 8 and whether it was for the court to review that decision or make up its own mind on the facts by applying that test itself; the second issue is relevant to the second question in the present application.
17. Relevant to the first question in this application is a passage in the judgment of Sedley LJ who gave the first judgment:
16. It may be necessary in a future case to examine more closely than is going to be necessary in this case where the sheer gravity of an offence, absent any propensity to repeat it, fits within Article 8.2. For the present, the important point is that the undoubted interruption of the appellant's private and (such as it is) family life by deportation has to be justified as being "necessary" for one of the prescribed purposes; and what is necessary is measured in the jurisprudence of the European Court of Human Rights by what is proportionate.
17. Neither Mr Ian Macdonald QC for the appellant nor Mr Mark Shaw for the respondent has suggested that the test of proportionality in the two jurisdictions (those of the Luxembourg and Strasbourg Courts) differs. In essence it amounts to this: a measure which interferes with a Community or Human right must not only be authorised by law, but must correspond to a pressing social need and go no further than is strictly necessary in a pluralist society to achieve its permitted purpose; or, more shortly, must be appropriate and necessary to its legitimate aim.....
18. Mr Blake QC did not (as I have stated) challenge the proposition that the sheer gravity of the offence, absent a propensity to repeat it, could in certain cases fit within Article 8.2, but the essence of his submission was founded on Sedley LJ's formulation that the measure must be no more than was necessary to achieve the permitted purpose - in this case deterring future offending.
19. At the outset of the hearing before me, it was apparent that another division of the Court of Appeal would be giving judgment on the following morning in R v The Secretary of State for the Home Department ex p Amjad Mahmood (C/2000/0385, transcript 8 December 2000). Mahmood had entered the UK clandestinely and subsequently claimed asylum. A week before his claim was refused and his removal directed, he had married a British citizen. He contended that the decision of the Secretary of State to direct his removal would be a violation of Article 8. The decision of the Court in B v Secretary of State was not cited to the Court. In his judgment, Lord Phillips of Worth Matravers MR, reviewed many of the decisions of the European Court of Human Rights on Article 8 relevant to the circumstances of that case and at paragraph  set out his conclusions:
(1) A State has a right under international law to control the entry of non-nationals into its territory, subject always to its treaty obligations.
(2) Article 8 does not impose on a State any general obligation to respect the choice of residence of a married couple.
(3) Removal or exclusion of one family member from a State where other members of the family are lawfully resident will not necessarily infringe Article 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.
(4) Article 8 is more likely to be violated by the expulsion of a member of a family that has been long established in a State if the circumstances are such that it is not reasonable to expect the other members of the family to follow that member expelled.
(5) Knowledge on the part of one spouse at the time of marriage that rights of residence of the other were precarious militates against a finding that an order excluding the latter spouse violates Article 8.
(6) Whether interference with family rights is justified in the interests of controlling immigration will depend on
(i) the facts of the particular case and
(ii) the circumstances prevailing the State whose action is impugned.
20. Both Mr Blake QC and Mr Howell QC (who appeared for the Secretary of State) in turn referred me to a number of cases decided by the European Court of Human Rights more relevant to the circumstances of this application. Mr Blake QC submitted that they demonstrated that the significant and determinative factor against deportation arose where there were serious obstacles to an alien enjoying family life outside the host state and where that alien had a close family life and was integrated into the society of the host state.
21. Beljoudi v France (1992) 14 EHHR 801 involved the consideration by the Court of a decision by France to deport a 40 year old man who had been born in France, but who, as a consequence of his Algerian parents' failure to make a declaration recognising French nationality, had lost his French nationality and retained his Algerian citizenship. He had married a French national in 1970, but had no children. For a period of several years he had committed a number of serious crimes. In holding that there was an infringement of Article 8, the Court, whilst acknowledging the right of states to maintain public order by maintaining control over the entry, residence and expulsion of aliens said at paragraph 74:
However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, 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.
The Court set out the various relevant factors that it had taken into account - the seriousness and persistence of the offences, the period of the marriage and its subsistence through the terms of imprisonment, his original French nationality and the circumstances of its loss, the fact he had spent his whole life in France and had no links with Algeria and the imperilling of the marriage if they had to live in Algeria. The court concluded that "having regard to these various circumstances", the decision to deport was not proportionate to the legitimate aim pursued.
22. Boughanemi v France (1996) 22 EHRR 228 involved a Tunisian national who had lived in France from the age of 8 for 20 years and 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 as his. He complained his deportation was a violation of Article 8. The Court rejected his complaint; the Court, having referred to the test for the decision-maker in the same terms as in Beljoudi, formulated the Court's task, making allowances for the margin of appreciation, at paragraph 42:
Its task consists of ascertaining whether the deportation at 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 crime and disorder, on the other.
Among the relevant factors were the period he had spent in France from a young age, the residence of his parents and siblings in France, his relationship with a French woman and their child, his retention of his Tunisian nationality, his ties with Tunisia and the seriousness of the offences he had committed.
23. In Bouchelkia v France (1997) 25 EHRR 686 the Court, after referring to the way in which decisions should be taken and the Court's own task in the same terms as in Boughanemi, also concluded that there was no violation of Article 8. The Court took into account the fact that the applicant had lived in France from the age of two, but that at the age of 17 had committed a rape; that he was deported to Algeria on his release; that he returned to France and then began a relationship with a woman whom he later married; that he had maintained links with his country of origin; that the rape was a very serious offence; the building of a new life after deportation did not call into question the original deportation.
24. Meheni v France (85/1996/704/896, 26 September 1997) involved an Algerian national who was born in France and lived there all his life until, at the age of 33, he was deported after being convicted of importing a large quantity of hashish from Morocco into France. His wife was an Italian resident in France and their three children, all born before his conviction, were French. After describing its approach in the same terms as in Bouchelkia and Boughameni, the Court concluded that the deportation was a violation.
... in view of the destructive effect of drugs on people's lives, the Court understands why the authorities show great firmness with regard to those who actively contribute to the spread of this scourge. The fact that the applicant participated heavily in a conspiracy to import a large quantity of hashish counts heavily against him.
Nevertheless in view of the applicant's lack of links with Algeria, the strength of his links with France and above all the fact that the order for his permanent exclusion from French territory separated him from his minor children and his wife, the Court considers that the measure was disproportionate to the aims perused...
25. In Yagiz v Austria (32846/96, decision of 23 March 1999), the applicant, a Turkish national, had taken up residence in Austria in 1989 and been joined by his wife and child in 1991. He was then convicted of drunken driving in 1993 and refusing to undergo a breathalyser test in 1994; in consequence he was banned from continuing to reside in Austria. In dismissing the complaint, the Court set out the principles to be applied (as set out in the earlier cases to which I have referred) and then considered the relevant factors, including the fact that although his children had spent part of their schooling in Austria, there was no indication that the family could not reasonably be expected to follow him to Turkey and adapt or re-adapt to life there.
26. In Ajayi v UK (27663/95, decision of 22 June 1999) the applicant had entered the UK with limited permission, but then worked in breach of that permission; she married a UK national, but had been notified of the intention to deport prior to the marriage. In rejecting her application, the Court set out some of the relevant factors to be taken into account:
Whether removal or exclusion of a family member from a Contracting State is incompatible with Article 8 will depend on a number of factors: the extent to which family life is expressly ruptured, the extent of the ties in the Contracting State, whether there are insurmountable obstacles in the way of the family living in the country of origin of one or more of them, whether there are factors of immigration control (e.g. history of breaches of immigration law) or considerations of public order weighing in favour of exclusion....
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.
27. Aftab v Norway (32365/96, decision of 4 May 2000) involved a Pakistani national who was convicted of selling 43 grams of heroin and sentenced to 5½ years imprisonment. He had come to Norway in 1976 when 12 and been at school and then in employment in Norway until his arrest when he was 26. His wife had come from Pakistan in 1985 and had acquired Norwegian nationality. They had 5 children, all of whom were Norwegian. After reciting the principles set out in the cases to which I have referred, the Court considered the relevant factors and dismissed the application. The factors included the fact that the applicant was not a second generation immigrant as in Beljoudi, that he had maintained contacts with Pakistan but had abused them by taking advantage of his dual links to Pakistan and Norway to establish his criminal activity, that the family had only integrated slightly into Norwegian society and that the children were of an adaptable age. In referring to the seriousness of the offence, the Court said:
The Court observes from the outset that the expulsion order was based on the particularly serious and damaging nature of the offences of which the first application was convicted, namely for having assisted in the sale of 43 grams of heroin and for having sold drugs, probably heroin, for a very large sum of money - approximately NOK 180,000. Adding to the seriousness of the crime was the effort made to introduce heroin to a new area and the sole motive of the crime being financial gain - the first applicant himself not being an addict. In the Court's view, even if the first applicant had not previously been convicted, this does not detract from the seriousness and gravity of such a crime (see Bouchelkia v. France...).
28. In my view none of these cases establishes that there is any dominant or determinative factor; in particular, I do not accept that the case law establishes that where there is a serious obstacle to enjoying family life outside the host state and where there is the likelihood that the family will be broken up that represents a dominant or determinative factor, though it may mean that it is more likely that infringement would be a violation of Article 8. In my view although certain factors may be said to make a violation of Article 8 more or less likely, the decision maker must examine each case on its own facts and determine 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.
29. It does not seem to me that it is possible to formulate the test in respect of these cases applicable to the decision-maker in a narrower way than the formulation of the European Court of Human Rights though the conclusions drawn by Lord Phillips MR in Mahmood are a necessary and helpful guide to the application of that formulation
Issue 2: What is the court's task?
30. The second issue in B v Secretary of State related to the way in which the court should approach its task in relation to the justification for an interference with rights under Article 8. It was common ground between counsel in that case, as a result of a concession by the Secretary of State in that case, that among the questions of law that arose on the appeal to the Court of Appeal was whether the decision to deport infringed the principle of proportionality. Sedley LJ put it in these terms at paragraphs 18, 23, 27 and 36:
18. It follows that among the issues of law for this court in a case such as the present is he question whether deportation constitutes a proportionate response to the appellant's offending. Being a question of law, it has to be answered afresh, even if reaching an answer involves taking a much closer look than we are accustomed to at the merits. I will turn first to the factual basis of these before returning to the important question of how much deference is due to the Immigration Appeal Tribunal's appraisal of them.
23. Mr Shaw submits that, notwithstanding that proportionality is a question of law, proper regard must be shown by this court for the Tribunal's view. As a general proposition, that is perfectly acceptable, but it begs the question as to what a proper regard involves.
27. But once we have taken the primary facts from the Tribunal, this is a case where we are as well placed as that Tribunal to decide what to make of them.
36. I have no doubt that the Home Secretary's view that deportation was nevertheless merited was legitimately open to him: even the additional factor of near life long residence would not necessarily have led this court to intervene on traditional public law grounds. But our public law, for reasons I have explained, now has to accommodate and give effect to the requirements of EU law and through EU law, of the European Convention. It means making up our own minds about the proportionality of a public law measure - not simply deciding whether the Home Secretary's or the Tribunal's view of it is lawful and rational.
Simon Brown LJ said at paragraph 47:
It was common ground before us that as proportionality involves a question of law and that on a statutory appeal of this nature, the court is required to form its own view on whether the test is satisfied, although, of course, in doing so it will give such deference to the Tribunal's decision as appropriately recognised their advantage in having heard the evidence. This task is, of course, different from and more onerous than that undertaken by the court when applying the Wednesbury approach. It would not be proper for us to say that we disagree with the Tribunal's conclusion on proportionality, but that, since there is clearly room for two views and their view cannot be stigmatised as irrational, we cannot interfere. Rather, if our view differs from the Tribunal's, then we are bound to say so and to allow the appeal, substituting our decision for theirs.
31. In the present case, Mr Howell QC for the Secretary of State expressly disavows the concession made by the Secretary of State in B. He contends that proportionality is not a question of law and that the approach of the Court should be to review the decision of the Secretary of State and not to come to a view of its own and substitute that view if it differed from the decision of the Secretary of State. As B was based on a concession, he submits I am not bound by it. However, before considering that submission, it is necessary to refer to the decision in Mahmood.
32. In Mahmood, the Court of Appeal expressed their views on a similar question though the issue arose not on an appeal from the Immigration Appeal Tribunal but on a judicial review of a decision of the Secretary of State. Unfortunately the decision in B was not cited. The decision under review in Mahmood had been made just before the Human Rights Act 1998 came into force. Laws LJ's approach was to apply the law as it existed at the time the decision was made, but stated he saw no different conclusion would be reached if the court had been engaged in the direct application of the Convention. Counsel for the applicant submitted that the court was in as good a position as the Secretary of State to make the actual decision on Article 8 and should take it. In rejecting that submission, Laws LJ, who gave the first judgment, said at paragraph 33:
The Human Rights Act 1998 does not authorise the judges to stand in the shoes of Parliament's delegates, who are decision-makers given their responsibilities by the democratic arm of the state. The arrogation of such a power to the judges would usurp those functions of government which are controlled and distributed by powers whose authority is derived from the ballot-box. It follows that there must be a principled distance between the court's adjudication in a case such as this, and the Secretary of State's decision, based on his perception of the case's merits. For present purposes that principled distance is to be found in the approach I have taken to the scope of judicial review in this case, built on what the common law has already done in Smith, Launder and Lord Saville. For the future, when the court is indeed applying the Convention as municipal law, we shall no doubt develop a jurisprudence in which a margin of discretion (as I would call it) is allowed to the statutory decision-maker; but in the case of those rights where the Convention permits interference with the right where that is justified by reference to strict criteria (Arts. 8-11, paragraph 2 in each case) its length will no doubt be confined by the rigour of those criteria in light of the relevant Strasbourg case-law, and the gravity of the proposed interference as it is perceived here. But that is for the future.
In his judgment, Lord Phillips, MR, made clear at paragraphs 39- 40:
....the decision must be subject to the most anxious scrutiny.... In such circumstances, the Court can no longer uphold the decision on the general ground that there was substantial justification for interference with human rights. Interference with human rights can only be permitted to the extent permitted by the Convention itself....
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 of the legitimate aims recognised by the Convention. When considering the test of necessity in the relevant context, the Court must take into account the European jurisprudence in accordance with s 2 of the 1998 Act.
33. Mr Howell QC submitted that I should follow Mahmood and that, as I have said, I was not bound by the decision in B that a decision on proportionality was a question of law on which the court had to form its own view; that decision was founded on a concession and the point was not argued, it was therefore not binding. He relied on the judgment of Hobhouse LJ in R v Secretary of State ex p Ku  QB 364 at 373 - 4 which in turn set out the conclusions of Sir Nicholas Browne-Wilkinson V-C after a review of the authorities in In re Heatherington decd  Ch 1. In the light of the position as summarised in those authorities, in my view, Mr Howell QC is correct and I am not bound by the decision on this point in B.
34. Furthermore the observations on this point in the judgments of Laws LJ and Lord Phillips MR are again strictly not binding on me; moreover B was not cited to that court. Although therefore I have to decide for the purposes of this case which decision to follow, it is not necessary or desirable for a judge at first instance to do so at any length, particularly as the Court of Appeal has recently heard argument about this aspect of the decision in B in R v The Secretary of State for the Home Department ex p Isiko and judgment is awaited. I will follow the judgments of the Court in Mahmood; they were reached after argument on this issue. My reasons are as follows.
35. The essential question is whether in the application of Article 8 to cases where a court has recommended deportation, there is accorded to the Secretary of State, whom Parliament has determined should make the decision on deportation, a discretionary area of judgment or whether the issue is a question on which the court must form its own view.
36. The issue relating to the discretionary area of judgment or deference to the decision of the legislature or executive was described in R v DPP ex p Kebeline  3 WLR 972, by Lord Hope of Craighead at p 944
Difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary should defer, on democratic grounds, to the considered opinion of the of the elected body or person whose act or decision is said to be incompatible with the Convention.
The area in which these choices may arise is conveniently described as "the discretionary area of judgment". It will be easier for such an area to be recognised where the Convention itself requires a balance to be struck.
37. The scope of the principles relating to the discretionary area of judgment was further considered by the Privy Council in Procurator Fiscal v Brown (5 December 2000); at issue was the question of whether the prosecution could lead evidence of an admission by a person that he was the driver of the car which had been obtained by compulsion under the provisions of the Road Traffic Act or whether this infringed rights under Article 6. In deciding that the requirement under the provisions of the Road Traffic Act was not a disproportionate response and did not undermine the right to a fair trial, Lord Bingham of Cornhill, stated in his opinion at p 13:
Judicial recognition and assertion of human rights defined in the Convention is not a substitute for the process of democratic government, but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies: see Lester and Pannick, Human Rights Law and Practice (1999) at pp. 73-6.
Lord Steyn referred in his opinion at page 17 first to the balance required:
The European Convention requires that where difficult questions arise, a fair balance must be struck. Subject to a limited number of absolute guarantees, the scheme and structure of the Convention reflects this balanced approach. It differs in material respects from other constitutional systems, but as a European nation, it represents our Bill of Rights. We must be guided by it. And it is a basic premise of the Convention system that only an entirely neutral, impartial and independent judiciary can carry out the primary task of securing and enforcing Convention rights.
When considering whether the provisions of the Road Traffic Act were proportionate to the aim to be achieved, Lord Steyn asked at page 19 of his opinion the question what deference was to be accorded to the legislature:
Under the Convention system the primary duty is placed on domestic courts to secure and protect Convention rights. The function of the ECHR is essential but supervisory. In that capacity it accords to domestic courts a margin of appreciation, which recognises that national institutions are in principle better placed than an international court to evaluate local needs and conditions. That principle is logically not applicable to domestic courts. On the other hand, national courts may accord to the decisions of national legislatures some deference where the context justifies it: see Reg. v. Director of Public Prosecutions, Ex parte Kebilene  3 WLR 972 per Lord Hope of Craighead, at 993-994; see also: Singh, Hunt and Demetriou, Is there a role for the "Margin of Appreciation" in National Law after the Human Rights Act?, 1999 European HRLR 15-22. This point is well explained in Lester and Pannick (Human Rights Law and Practice, 1999, 74):-
"Just as there are circumstances in which an international court will recognise that national institutions are better placed to assess the needs of society, and to make difficult choices between competing considerations, so national courts will accept that there are some circumstances in which the legislature and the executive are better placed to perform those functions".
He concluded that the factor was of relevance and that the legislature was in as good a position as the court in assessing the gravity of the problem and the public interest in addressing it.
38. It was accepted by Mr Blake QC, as I have mentioned, that the court should accord deference to the Secretary of State's policy that aliens who trafficked in class A drugs should be deported as a means of future deterrence of others who might consider importing class A drugs. But beyond that the court should not go. It was as well placed as the Secretary of State to decide in any particular case the question of proportionality and should decide it as was done in B.
39. I do not agree. Parliament accorded to the sentencing judge the power in cases such as the present to recommend deportation. In making that recommendation, the sentencing judge took into account and weighed up considerations such as the seriousness of the offence and the ties of family. That recommendation could have been challenged on appeal to the Court of Appeal, Criminal Division, for example if the enquiry made by the Court into the circumstances was inadequate. Leave to appeal was refused.
40. Parliament then accorded to the Secretary of State under the Immigration Act and the Immigration Rules, the decision whether to implement the recommendation of the sentencing judge by making a deportation order. It placed on him, as a public authority, the duty to give effect to Convention rights. Is there any reason why that legislative choice is incompatible with the Convention, given that the Courts exercise their supervisory jurisdiction under the Convention over the individual decisions made? I do not think so.
41. In making a decision, whether to give effect to the recommendation of the sentencing judge, the Secretary of State (as the decision-maker designated by Parliament) has to balance a number of factors in determining whether in a case such as this the interference with the right to respect for family life is necessary for the prevention of disorder and crime and for the protection of health and proportionate to the aim pursued. The decision-maker must take into account and consider what weight should be given to factors such as the prevalence of the crime in question, the effect that crime has on society and health and the deterrent effect of deportation to future offending. He must also take into account and consider what weight must be given to the family life and the degree of interference with it. I see no reason why the decision should not be taken, compatible with the Convention, by the Secretary of State as Parliament has decided it should be and that he be accorded the necessary discretionary area of judgment that must be accorded the decision maker. In R v Secretary of State ex p Ali Dinc  INLR 256, (where the applicant had been sentenced to five years imprisonment for possession of heroin with intent to supply) Henry LJ observed 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".
42. Furthermore, if it is accepted, as it must be, that the Secretary of State is entitled to have a policy that aliens who traffic in class A drugs should be deported as a future deterrence to others who might consider importing class A drugs, then it is difficult to see why he should not be entitled to decide the weight in any given case to be given to that policy and to perform the balance that the Convention requires in relation to proportionality, subject to the supervisory jurisdiction of the courts.
43. It must follow therefore that, as a decision-maker, the Secretary of State has a discretionary area of judgment in relation to the issues which he has to determine, including the issue of proportionality. That is what Parliament must have intended when it gave to him that decision making power without conferring a general right of appeal to the courts; if a discretionary area of judgment was not accorded to the Secretary of State and the issue of proportionality was therefore treated as a question of law, there would in effect be a right of appeal on each decision, not review, to the Court which would then make up its own mind on the issue. It is, in my judgment, entirely consistent with the Convention for Parliament to have accorded the power to the Secretary of State, subject only to the jurisdiction of the Courts in their supervisory role and not their appellate role . For the Court to treat the issue of proportionality as a question of law for it and for the Court to make up its own mind on the issue of proportionality under Article 8 would in reality be to take upon itself an appellate role as the final decision making power, as the decision on proportionality is at the heart of the decision under Article 8. That is not what Parliament has provided under the Immigration Acts and is not a conclusion brought about by the Human Rights Act or the Convention. The role of the court remains one of review.
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 Sate 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 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 QC for the Secretary of State accepted, is on the Secretary of State to persuade the Court that he has so acted.
Issue (3): Did the decision of the Secretary of State within his discretionary area of judgment, strike a fair balance between the applicant's right to respect for his private and family life, on the one hand, and the prevention of crime and disorder, on the other?
The decision of the Secretary of State
46. The primary basis of the decision of the Secretary of State, was, as Mr Still's witness statement of 30 November 2000 sets out, that it was likely that Mrs Samaroo would stay in the UK, if the applicant was deported to Guyana and that therefore deportation would interfere with his family life and the life of his wife, son and other members of the family which had been re-established since his release from prison on bail. Thus the primary ground on which the Secretary of State had made his decision was that there would be interference with family life as it was likely that Mrs Samaroo and his son would stay in the UK.
47. The Secretary of State also considered the matter on the basis that Mrs Samaroo and their son might chose to accompany the applicant as this was not a case where he considered it was unreasonable for them to do so. The obstacles were not insurmountable.
The applicant's submissions
48. At the forefront of the submissions of Mr Blake QC's on behalf of the applicant was the submission that the Secretary of State was not entitled to conclude that it was reasonable to expect Mrs Samaroo and their child to follow the applicant to Guyana when, on the facts accepted, there were serious obstacles to this course. The obstacles included the fact that neither the applicant nor Mrs Samaroo had any close connection in Guyana and a move to Guyana would interfere with the enjoyment by Mrs Samaroo and her own three children of family life. Furthermore the removal of a nine year old child who had never been to Guyana would be inconsistent with recently announced Government policy; the removal of Mrs Samaroo would also deprive the UK of her socially useful employment as a nurse.
49. It was submitted that given the accepted interference with family life (on the primary basis on which the Secretary of State arrived at his decision), the fact that the applicant had a close family life and was integrated into society, the fact that it is unlikely that the applicant will offend again and that there were in fact real obstacles to Mrs Samaroo accompanying the applicant, the decision to deport was not necessary for the prevention of crime and disorder and therefore could not be proportionate. Family life could not be reasonably enjoyed outside the UK in the circumstances of this applicant's family; future deterrence of others could not therefore justify the interference. No case in the European Court of Human Rights had ever upheld such a decision as striking a fair balance. The Secretary of State had not explained how the protection of the interests of those in the UK from the effects of drugs and the prevention of crime and disorder was significantly advanced by interference with the applicant's family life in these circumstances.
The policy in relation to children
50. It is convenient to examine the submissions of the Applicant by first considering the policy in respect of young children announced in an answer to a Parliamentary question on 24 February 1999 in these terms (Hansard. ... col. 309):
"For a number of years it has been the practice of the Immigration and Nationality Directorate not to pursue enforcement action against people who have children under 18 living with then who have spent 10 years or more in this country, save in very exceptional circumstances.
We have concluded that 10 years is too long a period. Children who have been in this country for several years will be reasonably settled here and may, therefore, find it difficult to adjust to life abroad. In future, the enforced removal or deportation will not normally be appropriate where there are minor or dependent children in the family who have been living in the United Kingdom continuously for 7 or more years. In most cases, the ties established by children over this period will outweigh other considerations and it is right and fair that the family should be allowed to stay here. However each case will continue to be considered on its individual merits."
51. The fact that this is recent policy is a factor to be given weight; but the policy makes clear that it is a general policy, each case is considered on its merits and enforcement should not be pursued against parents of such dependent children save in exceptional circumstances.
Moving to Guyana
52. The fact that the applicant has no ties in Guyana does not provide a substantial obstacle to him viewed on his own; he is a national of Guyana, was born there, educated there and worked there until he was about 35. As he has been able to find work in the UK since his release on bail, there is nothing to suggest he will not be able to find work there. Furthermore although Mrs Samaroo has been in the UK since she was 16 given her qualifications as a nurse, it is probable she would be able to obtain employment in Guyana.
53. It must, however, be clear that for their son to accompany them to Guyana would interrupt his schooling; but he is of an age where he has not yet taken his main examinations and he would attend an English speaking school if he went to Guyana. It must also be clear that if Mrs Samaroo accompanied the applicant, there would be disruption to her family life with her other children and other family members; but the other children are now all over 18.
54. The obstacles to her and her son accompanying the applicant were therefore a very weighty factor but this was not a case in which there was no possibility that Mrs Samaroo would decide not to accompany Mr Samaroo to Guyana, unlikely though it was.
Drug trafficking and the level of criminality of the offence committed by the applicant
55. It was, as I have said, accepted that trafficking in class A drugs is a very serious offence. In Marchon v Immigration Appeal Tribunal  Imm AR, Beldam LJ said:
It would in my judgment be difficult to imagine a more fundamental interest then the unrelenting pursuit of the fight against the deliberate debilitating and destructive influence of dealing in, and importing into society, addictive and lethal drugs such as heroin and cocaine. It seems to me that even the hint that society was prepared to tolerate such conduct, by accepting the presence of persons who have been prepared to import large quantities of such drugs under the cloak of legitimate business, would undermine the overwhelming public interest in defeating this subversive trade. I say this not simply because refusal to do so would act as a deterrent to others but rather that it serves to emphasise the grave and present danger which society facts from this threat. At the least, it seems to me that the Secretary of State is entitled to regard conduct of that kind as a flagrant abuse of the right of permanent residence in this country.
56. If anything, it is probable that since 1993 the use of heroin and cocaine is more widespread; the destructive effect on the lives of those who live in socially deprived areas of England, Scotland and Wales is even more evident. In these circumstances, it cannot be open to serious question that the Secretary of State is entitled to attach considerable weight to the element of future deterrence against those who traffic in heroin and cocaine, but by the very nature of deterrence he cannot be expected to provide detailed facts and figures to justify that view. The more restrictive view taken of this factor where there is no evidence of future propensity in cases relating to EU nationals (R v Bouchereau  QB 732, Nazli v Stadt Nurnberg, (C-340/97, 10 February 2000)) does not apply in the case of this applicant as he is not an EU national.
57. Apart from future deterrence, in my judgment, the circumstances of the applicant's criminality in relation to the drugs trafficking offence of which he was convicted and recommended for deportation were another factor that the Secretary of State was entitled to consider and to which he could attach considerable weight. The recommendation for deportation was made by the sentencing judge; as was said in R v Secretary of State for the Home Department ex p Ali Dinc, this is a material fact for the Home Secretary to take into account. In D v UK (1997) 24 EHHR 423, the European Court of Human Rights, holding on the facts a violation of Article 3, observed in respect of a courier importing cocaine that:
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 the expulsion of alien couriers like the applicant is a justified response to this scourge.
In Aftab, as is apparent from the passage I have cited, the Court considered the seriousness and gravity of the crime committed was of itself a significant factor.
58. As was pointed out by Dillon LJ in Marchon, (where the sentencing court had made no recommendation for the deportation of the applicant who been sentenced for smuggling heroin) the fact that a sentence of imprisonment has been served did not mitigate the seriousness of the offence; the offence committed was:
an affront to the requirements of public policy and in the present case and it involved a disregard of the basic or fundamental or moral tenets of society. One would expect that such an offence would receive an appropriately heavy sentence, as this one did. But I do not see that that has any bearing upon the quite different question whether the committing of such an offence in its circumstances itself involves a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society and so sufficient to warrant deportation.
59. The applicant's role in the drug trafficking of which he was convicted was found by the Judge to be one of organising the London end of the importation. Given that vital role in the organisation of the importation of cocaine, the Secretary of State was fully entitled to give particular weight to the level of serious criminality and the effect such a person has on society as a whole through organising the import of cocaine; the applicant was not a courier, but someone who had played a much more significant role in the trafficking of class A drugs, a form of criminality that strikes at the roots of a democratic society and particularly at its disadvantaged members.
60. Nor can it be said that the Secretary of State's decision in this case is a decision that because the policy of deterring future offenders by deporting a past offender is a legitimate aim, that policy makes deportation necessary. The Secretary of State did properly consider whether the interference with family life (which he considered likely in this case) was necessary for the prevention of crime and had regard to the circumstances of the offence and future deterrence. He was not simply applying a blanket policy.
61. Nor did the Secretary of State misdirect himself. It is clear from the witness statement in which the reasons for the final decision made in November 2000 are set out that he applied the proper test applicable to the decision-maker.
62. Taking into account the matters which the Secretary of State did consider, in my judgment, his conclusion that deportation was necessary did strike a fair balance between the applicant's right to respect for his family life on the one hand and the prevention of crime and disorder. The gravity of the applicant's offending evident in his particular role in the trafficking of cocaine and the strong need to deter others were such that despite the interference with family life, I am satisfied, giving the decision anxious and intense scrutiny, that the Secretary of State struck a fair balance; I am also satisfied there were strong and objective grounds on which he could reasonably have concluded that the interference with the applicant's rights under Article 8.1 was necessary to prevent crime and proportionate to that aim.
63. I therefore refuse the application to quash the decision and refuse to grant the declaration sought.
(I certify that the attached text records my judgment and direct that no further note or transcript need be made)