Case No: C5/2010/1055
Neutral Citation Number: [2010] EWCA Civ 1007
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/13821/2009]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 19th August 2010

Before:

LORD JUSTICE SEDLEY

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	YM (Eritrea)	
Appellant	
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SECRETARY OF STATE FOR THE
HOME DEPARTMENT	

Respondent	
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THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment
Lord Justice Sedley:  

1.	This application is made in person by Mr M, notwithstanding that he has until relatively recently had legal representation and notwithstanding that he is for the present in administrative detention.  He has had to be put up with the attendance of three officers in order to make his application today.  I am not entirely clear why he has lost the legal representation he had, but he has at least had the advantage of a well-written skeleton argument prepared by Mr John Walsh, which I have taken into account on his behalf in coming to the conclusion to which I am about to turn.  

2.	Before I do so, I will direct that this judgment be transcribed at public expense and that copies be supplied not only to the applicant in person but to his former solicitors, Luqmani Thompson & Partners of Wood Green, and to his former counsel, Mr John Walsh of Doughty Street Chambers, as well as of course to the Treasury Solicitor on behalf of the Home Office.

3.	The applicant came here in 1993 from Eritrea at the age of 16.  He was refused asylum but given four years’ exceptional leave to remain.  Since the expiry of that leave, he has remained here without further leave.  He now faces deportation as a criminal offender.  By 2001 he already had a substantial record for petty but persistent crime.  As it stood by the time of the present appeal, his record can be found in summary at paragraphs 58-67 of the first Immigration Judge’s determination.  It is justifiably described in the judgment of the Senior Immigration Judge, which is the immediate focus of the present application, as “appalling”.  At the end of paragraph 31, the Senior Immigration Judge says: 

“It is the pattern of persistence of the appellant’s offending behaviour, rather than the nature of any particular offence, which cumulatively constitutes the seriousness of his criminal record.”

4.	In the course of acquiring that record, the applicant had twice come close to deportation and had still failed to mend his ways.  In 2006 he succeeded in an appeal against a notice of intention to deport, and in 2009 a further deportation notice was served but was withdrawn because of a technical error in it.  Then, following yet further offending, the present order was made in 2009.  In large part, it seems fairly clear, the persistence of the offending is of a compulsive nature.  There are many signs, both in the pattern of offending and in the despairing disposals made by a succession of Magistrates’ Courts, that the applicant is disturbed.  Psychiatric examinations have diagnosed major depressive illness aggravated by resort to alcohol, but at no stage has he been found not to be responsible for his own acts.

5.	He has however put before me a statement in mitigation of his conduct, explaining the state of near destitution in which he found himself on release in December 2006, and putting forward factors which may be relevant to the Article 8 question but are not relevant to the decision that I have to take today.  The applicant also has the good fortune to have a young woman with whom he lived for a year or so in 2003 to 2004 but who has stood by him -- I think she is in court today -- to the extent that she has told the Asylum and Immigration Tribunal that she would if necessary go to Eritrea with him.  

6.	The appellant’s appeal against the deportation order was allowed on Article 8 grounds by Immigration Judge Monro.  On reconsideration however Senior Immigration Judge Waumsley held her decision to have been vitiated by an error of law.  His own decision, which he then substituted, was to dismiss the applicant’s appeal.  Counsel on his behalf and now Mr M in person challenge both limbs of the determination.  

7.	The first limb, I think, can be shortly dealt with.  Although the Senior Immigration Judge considered the fatal flaw to have been a failure to give discrete weight to the Home Secretary’s view of where the public interest lay (see paragraph 26), his earlier finding (see paragraph 15) that the Immigration Judge had taken a mistaken approach to the applicant’s family life for Article 8 purposes was in my view a sufficient ground by itself for setting aside the first determination, notwithstanding that the Senior Immigration Judge thought it might not be.  

8.	Thus far therefore I respectfully concur with the reasons of Sir Scott Baker for refusing permission to appeal.  Moreover, like him I can see no substantive error in the Senior Immigration Judge’s tabulation and evaluation of the individual elements of proportionality as they emerged from the evidence, even though they might well have been different had the more sympathetic view been taken that the applicant urges me to take today.  And even if there is a tension, as I think there is, between the Senior Immigration Judge’s finding in paragraph 29 that the loyalty of his girlfriend counts in the applicant’s favour (that is, is not a reason for deporting him) and the use of it at the end of paragraph 34 to the opposite effect, what I do accept is arguable, and indeed is a question of law of general importance, is whether the Senior Immigration Judge was right to hold in paragraph 28 that the presumption in favour of deportation set out in paragraph 364 of the Immigration Rules carries over into the Article 8 exercise under paragraph 380 of the Rules.  The Senior Immigration Judge held that it did.  He said in paragraph 28: 

“In carrying out the assessment of proportionality, it is to be recalled that the starting point is not that the scales are evenly balanced between the parties.  On the contrary, by reason of the presumption enshrined in paragraph 364 of the Immigration Rules, the scales are already tipped in the respondent’s favour.”

9.	So far as I know, although I have not researched it thoroughly, but so far also as counsel’s skeleton argument goes (and we are dependent upon counsel for candour in this regard) there is no authority on the point.  It is a point which may moreover need to be examined not only in the light of the Rules but in the light of the new “foreign criminal” provisions contained in section 32 of the United Kingdom Borders Act 2007. 
 
10.	I have considered whether, even if the applicant succeeds on this issue, he can hope ultimately to escape deportation.  All I need say for the present is that, given that none of his sentences has reached the level of 12 months’ imprisonment and that he has a well-attested psychiatric condition which at least helps to explain albeit not to excuse his offending, plus at least a measure of family life here, I am not satisfied that his eventual deportation is a foregone conclusion.

11.	I therefore grant permission to appeal on the single ground which I have identified in this judgment.

12.	Before I leave the case I want also to say this: Mr M is in administrative detention, and he tells me that he has been there for two years; I have not done the calculation myself.  Administrative detention is not a form of warehousing and is not to be used by the Home Office as if it were.  Where the entire endeavour of an individual is to remain in this country, the risks of absconding may take on a different character from what they frequently are, certainly in bail cases.  There is also clear authority that a point comes at which detention simply cannot continue to be justified even though the situation leading to it may not have changed. 

13.	I would like the Home Office to give immediate and careful consideration to whether they are justified in keeping this man in custody while the appeal is pending.  I also want it to be clear that he needs access to his lawyers, either the ones who have represented him in the recent past or other lawyers, in order to pursue this appeal properly and to be of assistance to the court.

14.	I am going therefore to give liberty to both parties to apply to me for any directions that are required between now and the hearing of the appeal.  I do not feel that it is necessary to expedite the appeal on the material at present before me because I do not see it as a foregone conclusion that this man is going to remain in custody pending the appeal, but if he is then expedition may be in place; and if there is not to be expedition -- and queue jumping is not to be encouraged in this court -- then a serious question arises whether he ought to remain in custody.

Order:  Application granted in part.