![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> PM (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 937 (26 July 2007) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2007/937.html Cite as: [2007] EWCA Civ 937 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT NO. IM/01225/2005]
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE TUCKEY
and
LORD JUSTICE LONGMORE
____________________
PM (Jamaica) |
Appellant |
|
- and - |
||
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr G Clarke (instructed by Treasury Solicitors) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Sir Paul Kennedy:
"He told me that he came initially on holiday but stayed and was supported by a cousin who funded his attendance at the college in Chelsea College in Brixton where he studied Information Technology. He told me that one of the motivating factors in his coming to and remaining here was his family's wish that he should be removed from the violence that was occurring in his area between gangs, although he indicated to me that he did not consider he was at risk himself of getting involved in the criminal activities that prevailed. Also, the family considered that he would have greater opportunities to better himself here."
In any event, the appellant did not return to Jamaica and on 4 October 2000, just before the end of the six month period, he applied to remain as a student. That application was refused on 15 November 2000 and he then lodged an appeal.
"I have no doubt that this defendant is seriously involved in class A drugs in the Northampton area and he is a man who is prepared to have some form of firearm if necessary in connection with that conduct. Inevitably, all of those factors make this a serious series of offences and it is perhaps fortunate that he was arrested when he was before any great harm was done with that particular pistol."
Assuming that the offences were committed on the day of the appellant's arrest, they were committed 26 months after his arrival in the United Kingdom.
"The panel has weighed the serious nature of the index offences, and his minimisation of their seriousness, against the evident progress that he has made in prison and his willingness to comply with the demands of licence. On balance it took the view that his risk of re-offending had reduced and parole is therefore granted."
Whilst the parole board was considering whether to grant parole, the Secretary of State was considering whether to deport, and on 25 May 2004 he gave notice of his decision to make a deportation order, that being an order which, in the light of the convictions, he considered to be "conducive to the public good". The order was made under section 3(5)(a) of the Immigration Act 1971 (as amended), which so far as material, provides that a person who is not a British citizen:
"… is liable to deportation from the United Kingdom if:
(a) the Secretary of State deems his deportation to be conducive to the public good."
"Full and careful consideration has been given to all the known facts of your case in line with paragraph 364 of HC395 (as amended). Your personal and domestic circumstances have been carefully balanced against the seriousness of your crime and need to protect the wider community. It is concluded that in your case it is appropriate to deport you to Jamaica."
"In considering whether deportation is the right course on the merits the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all respects.
Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including:
(i) age;
(ii) length of residence in the United Kingdom;
(iii) strength of connections within the United Kingdom;
(iv) personal history, including character, conduct and employment record;
(v) domestic circumstances;
(vi) previous criminal record and the nature of any offence of which the person has been convicted;
(vii) compassionate circumstances;
(viii) any representations received on the person's behalf."
"I am satisfied in light of all the matters previously referred to that balancing the public interest against the compassionate circumstances of this case as required by rule 364 the Respondent should have exercised his discretion differently and that the decision to make a Deportation Order is not appropriate. In reaching that decision I have considered the Respondent's view that there is an element of 'example to others' in the deportation decision. The rehabilitation, remorse and subsequent good character of the appellant outweigh that consideration."
"We are satisfied that the adjudicator erred in law in failing to give proper consideration to the legitimate public interest, both in deterring a serious crime and in sending a powerful message to individuals minded to commit such crimes, particularly those involving firearms or hard drugs, that such offences are rightly to be viewed with abhorrence, and that foreign nationals who commit them must expect to be deported from the United Kingdom save in exceptional circumstances."
"The appropriate course of action is therefore for this hearing to be adjourned for a full stage 2 reconsideration before another panel of this tribunal so as to enable the parties to adduce such further evidence as may be thought appropriate, and for the panel to arrive at a fresh decision on the basis of that evidence."
There would seem to be no doubt that the second tribunal was envisaged as being able to proceed on the basis of any evidence that it might hear.
"If I was forced to return to Jamaica, I would be homeless and would be killed by gunmen. The man to whom I owe money has threatened me and my family - he said that there is nowhere in Jamaica we can hide. He has links and friends in Jamaica and has threatened that if I return to Jamaica me and my family will be killed."
"The Appellant has persisted in his account that he found the gun, notwithstanding the implausibility of that account. We do not accept the Appellant's account of this. We note that the judge analysed the matter very carefully in his sentencing remarks following a Newton Hearing."
I interpose to explain that the tribunal had heard evidence from the appellant. It was clearly entitled to form a view about it:
"It is a matter of some concern that the Appellant continues to put forward this implausible account and in our view it undermines the Appellant's claim to be a changed man and to have left his offending behind him. The fact that the Appellant cannot be honest to this court or with his probation officers about what he has done and why he has done it leaves us to doubt the Appellant's claim to be a changed man who has put his pattern of past offending behind him.
We were concerned that the impact of the probation officer's remarks as to the likelihood of re-offending was severely undermined by the fact that the probation officer clearly had not been given full details of the Appellant's previous offences and was working on the basis of what the Appellant only had said. As the Appellant had been shown by the sentencing judge to be unreliable in this respect, the adoption by the probation officer of the Appellant's account had inevitably coloured her judgment to the extent that we have found we could not rely on it. We cannot therefore be as sanguine as the previous Adjudicator evidently was that the Appellant does not pose a risk of re-offending."
"The [stage 2] assessment should prima facie take place on the basis of the findings of fact and the conclusions of the original Tribunal, save and in so far as they have been infected by the identified error or errors of law. If they have not been infected by any error or errors of law, the Tribunal should only re-visit them if there is new evidence or material which should be received in the interests of justice and which could affect those findings and conclusions or if there are other exceptional circumstances which justify reopening them."
"Whilst we have given careful consideration to the compassionate circumstances in this case and in particular the Appellant's family situation, in carrying out the necessary balancing exercise for ourselves, we do not find that these circumstances outweigh the public interest in accordance with the tests set out by the panel at stage one in their determination and by the Court of Appeal in N Kenya. The panel refer in particular to the majority judgment of the Court of Appeal in N Kenya and the guidance to be given to judges in dealing with such cases. The sale of hard drugs and possession of a firearm are offences to be viewed with abhorrence. We note the panel's view that 'foreign nationals who commit them must expect to be deported from the United Kingdom save in exceptional circumstances.'
It follows from what we have said that we do not find that there are any such exceptional circumstances in this case."
"The discretion is to balance the pubic interest against the compassionate circumstances of the case taking account of all relevant factors including those specifically referred to in paragraph 361 of HC 395. Essentially the same balance is expressed as that between the appellant's right to respect for his private and family life on the one hand and the prevention of disorder or crime on the other. Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality."
At paragraph 83 Judge LJ said:
"In my judgment (whether expressly referred to in any decision letter or not) broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation. The Secretary of State has a primary responsibility for this system. His decisions have a public importance beyond the personal impact on the individual or individuals who would be directly affected by them. The adjudicator must form his own independent judgment. Provided he is satisfied that he would exercise the discretion 'differently' to the Secretary of State, he must say so. Nevertheless, in every case, he should at least address the Secretary of State's prime responsibility for the public interest and the public good, and the impact that these matters will properly have had on the exercise of his discretion. The adjudicator cannot decide that the discretion of the Secretary of State 'should have been exercised differently' without understanding and giving weight to matters which the Secretary of State was entitled or required to take into account when considering the public good."
At paragraph 87 Judge LJ said:
"Although not expressly mentioned as a factor in rule 364, I agree with the adjudicator that the risk of further offending or potential danger was relevant to the deportation decision. In simple terms, the greater the risk represented by the offender, the greater the public interest in his deportation. However, just as the express provisions in rule 364 do not specify that the conviction of a specific crime or crimes will automatically lead to an order for deportation, so consideration of the 'nature of the offence' or offences of which he was convicted continues to be relevant, even if the risk posed by the appellant has significantly diminished. Indeed as it seems to me, even if the risk were extinguished altogether, given the need to attend to the public good and the public interest, the nature of the relevant offence or offences continues to require close consideration."
"That the ultimate question for the Appellate Immigration Authority is whether the refusal of leave to enter or remain in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is in the affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the Appellate Immigration Authority directing itself along the lines indicated in this opinion need ask in addition whether the case meets the test of exceptionality."
Lord Justice Tuckey:
Lord Justice Longmore:
Order: Appeal dismissed.