The Secretary of State for the Home Department v Respondent  UKUT B1 – Read judgment
There has been public outrage over the ruling of two Senior Immigration Judges that it would be unlawful to deport Aso Mohammed Ibrahim, an Iraqi Kurd, who has been labelled an “asylum seeker death driver”
The fury has not been limited to the lay public or the media, but “great anger” has also been expressed by high-profile figures such as Prime Minister David Cameron, a well-known critic of the Human Rights Act. The Government’s embarrassment over the decision has prompted Immigration Minister, Damian Green, to announce that the UK Border Agency (UKBA) will appeal the decision, and there have been more drastic calls from Tory MPs for the scrapping of the Human Rights Act.
However, amidst the fury and the understandable sympathy for the father of the 12-year-old girl who died after Mr Ibrahim ran over her in his car and then fled the scene, it is important to step back and consider what actually was decided by the Senior Immigration Judges. As in the case of Philip Lawrence’s killer which we recently posted on, analysis of the decision reveals three reasons why perhaps the anger at the ruling is misplaced.
First, there has been some confusion as to the nature of the decision made by the Senior Immigration Judges. Their task was to consider the appeal brought by the Secretary of State for the Home Department (UKBA) against the decision of Designated Immigration Judge McClure made following a hearing at Manchester on 3rd November 2009. The Designated Immigration Judge allowed Mr Ibrahim’s appeal against UKBA’s decision of 29th June 2009 to give directions for his removal from the UK.
As explained by the Senior Immigration Judges, the question facing the Immigration Judge was not the same one they had to answer. Whereas the Immigration Judge was concerned with the fact-based assessment of whether Mr Ibrahim’s removal would bring about an infringement of his European Convention on Human Rights (ECHR) Article 8 rights to family life that was sufficiently serious, the task of the Senior Immigration Judges was to decide whether the conclusions reached the Immigration Judge were legally open to him. It was not for them to reconsider the appeal on its merits.
The distinction between the two tasks of the Immigration Judge and Senior Immigration Judges is more important than may be apparent. It meant that the Senior Immigration Judges would not go behind the findings of fact made below unless such findings or facts were unreasonable or not legally open to the Immigration Judge. The fact that the Immigration Judge had the opportunity of oral evidence from Mr Ibrahim, his wife, and his brother-in-law, as well as letters of support from two of the children and his mother-in-law meant that he was better placed than the Senior Immigration Judge to carry out the balancing exercise necessary to assess whether the interference with Mr Ibrahim’s Article 8 rights prevented his removal.
The Secretary of State sought to challenge the Immigration Judge’s decision on the basis that he had failed to provide adequate reasons for finding that Mr Ibrahim enjoyed family life with his wife and children; that he had failed to have regard to Mr Ibrahim’s criminality, and that he had applied an incorrect test thereby creating too high a hurdle for the Secretary of State. The Senior Immigration Judges simply decided that none of the grounds of appeal successfully challenged the legal basis of the Immigration Judge’s conclusions.
The role of the tribunal
Secondly, there is a common misconception that the role of the Asylum and Immigration Tribunal is to punish individuals for criminal acts and misdemeanours. That is the job of law enforcement officers and the criminal courts not the Tribunal.
Both the Immigration Judge below and the Senior Immigration judges were aware of the Claimant’s criminal record, which spanned convictions from September 2002, two months before he was supposed to leave the UK once his appeal rights against the decision to refuse him asylum had been exhausted.
The Senior Immigration Judges also expressed the “utmost sympathy” for the family of the 12-year-old girl who lost her life when Mr Ibrahim ran her over after driving a motor vehicle whilst disqualified, driving without insurance and failing to stop following a road traffic accident. They acknowledged openly that Mr Ibrahim was responsible for her death and the emotion and nature of feeling that the proceedings before them engendered amongst the girl’s family.
However, they also recognised that “those responsible for taking decisions relating to prosecutions in the public interest concluded that he bore no criminal responsibility in terms of the manner of his driving” and that Mr Ibrahim had been convicted and sentenced to two concurrent terms of four months’ imprisonment on 10th December 2003. Mr Ibrahim’s culpability therefore must be viewed in the context of the sentence that was actually imposed rather than how members of the public or even the victim’s family view the consequences of his act.
Family rights versus family rights
Thirdly and most importantly, although the public and the family of the 12-year-old victim bemoan the apparent trumping of the human rights of her family by those of the failed asylum seeker, this reflects a further misunderstanding of the role of the Tribunal. As the Senior Immigration Judges explained, the Tribunal is not tasked with balancing one individual’s or one family unit’s family life against those of another. Rather their task is “an assessment of the public interest arguments justifying removal and the response to the offences which were committed balanced against the consequences of removal not only on the Respondent but on his partner and his children”. In any event, the Tribunal could not retrospectively protect the Article 8 rights of the victim’s family by destroying the family life of Mr Ibrahim.
The nature of the balancing exercise has been the subject of lengthy judicial consideration at the highest level of domestic courts (see, for example, R(Razgar) v SSHD  UKHL 27 and Huang v SSHD  UKHL 11) and it is right that the interest to be balanced against that of Mr Ibrahim and his family is that of the general public or society, not of individual members of it.
The House of Lords has also made clear that it is necessary to consider the impact of deportation on all of the members of the family unit, not just the individual being deported (Beoku-Betts v SSHD  UKHL 39), and that in cases involving children, only rarely should an Article 8 claim be unsuccessful on the basis that it would be more proportionate and more appropriate for that individual to leave and apply for leave from abroad (Chikwamba v SSHD  UKHL 40). More recently, the Upper Tribunal (Asylum and Immigration Chamber) in the case of LD  UKUT 278 confirmed that the best interests of the children are always a relevant consideration in an Article 8 case.
However, the courts have never suggested that all someone has to do to secure a right to remain in the UK is to have children. It has never been held that the best interests of the children would always be decisive and take precedence over the public interest in removal. Rather, each case must be decided on its merits.
The merits of Mr Ibrahim’s case and that of his family that were accepted by the Immigration Judge, whose conclusions were not disturbed by the Senior Immigration Judges, can be summarised as follows.
Mr Ibrahim arrived in the UK in January 2001 and should have left in November 2002 after his asylum claim failed. However, he chose not to leave the country but he was not deported either. By June 2003 he was in a relationship with a British national, who had two children and they began living together in September of that year. By the time Mr Ibrahim had been arrested and detained for immigration offences in October 2008, he and his British partner had had two children.
There were issues raised about the credibility of this family life but the Immigration Judge, having heard the evidence, accepted that there was family life in the UK and that Mr Ibrahim enjoyed a close and loving relationship with his wife and children which would be severed if he were removed to Iraq. The Senior Immigration Judges also noted that the Claimant’s partner had shown “unwavering loyalty to the Respondent in extremely difficult circumstances” and in the face of “a high level of public anger” about the case which forced Mr Ibrahim to move out of the family home in order to protect his children, now aged 12, 11, 4, and 3 from the effects of the public anger. Thus, the Senior Immigration Judges commented that his was a family unit, “indeed a strong family unit, which has been subjected to a number of stresses over the years and has withstood them”.
The Senior Immigration Judges added that it was difficult to see what useful purpose could be served by requiring the Respondent to return to Iraq in order to apply in Jordan for an entry clearance to which he has become entitled under Article 8. They also observed that the reason he had become so entitled was the Secretary of State for the Home Department’s substantive delay in making a lawful decision in relation to his removal after his asylum bid had failed or after his conviction in December 2003.
Indeed, it is arguable that much of the fury against this decision and the perceived injustice of the Human Rights Act should be aimed more appropriately at the long delays in deciding to remove those whose asylum claims are unsuccessful. The House of Lords has made clear in EB (Kosovo)  UKHL 41 that delays on the part of the Home Department may be relevant and might be seen as evidence of a dysfunctional system which leads to unpredictable, inconsistent and unfair outcomes. In Mr Ibrahim’s case, the delays in effecting his removal worked in his favour.
Therefore, arguments that the Human Rights Act is unjust or that it perversely favours the human rights of terrorists, criminals or villains over law-abiding citizens and victims are misplaced.
If indeed an individual does pose a risk to society then the Human Rights Act itself does not preclude that person’s removal. Rather, the Human Rights Act and the Article 8 right to family life enshrined therein simply require the Home Department and the courts to carry out a balancing exercise before deciding that person can be removed.
If there is strong evidence of family life and that there will be sufficiently serious interference with that family life then removal is unlikely particularly if the public interest arguments in favour of removal are weak. In contrast, other cases (such as Ekinci v SSHD  EWCA 765 and the more recent case of Mark Wray v SSHD  EWHC 3301) demonstrate that if an individual is a clear threat and commits heinous crimes such that there is an obvious public interest in his removal, then such individuals have been deported even if there is the inevitable interference with family life.
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