“Asylum seeker death driver” case was misunderstood

The Secretary of State for the Home Department v Respondent [2010] 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.

Confused reporting

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 [2004] UKHL 27 and Huang v SSHD [2007] 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 [2008] 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 [2008] UKHL 40). More recently, the Upper Tribunal (Asylum and Immigration Chamber) in the case of LD [2010] 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

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) [2008] 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.

Misplaced anger

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 [2003] EWCA 765 and the more recent case of Mark Wray v SSHD [2010] 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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7 thoughts on ““Asylum seeker death driver” case was misunderstood

  1. “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…” Of course, in law
    the family of the 12-year-old victim’s rights do NOT include the
    right to vengeance, or any say in how or whether anybody with any
    responsibility for her death should be treated. Some argue that
    victims should have this right; but this would be illiberal and
    arbitrary: some victims (or their families) will be forgiving;
    others won’t. And such decisions should be made by society in a
    disinterested way (via the courts), not by interested
    parties.

  2. As the post says, the Senior Immigration Judges (SIJ) were
    looking primarily at the points of law in contrast to the
    Immigration Judge (IJ) looking at the application of Article 8, but
    I think the distinction is largely academic. If the SIJ were
    “deciding whether the conclusions reached by the IJ were legally
    open to him” that is in essence judging the interpretation of the
    wording of Article 8 as it applies to this case. “… the Senior
    Immigration Judges would not go behind the findings of fact made
    below unless such findings of facts were unreasonable… ” i.e. the
    SIJ could make a judgement on the reasonableness of the prior
    judgement. One of the bases for the appeal by the UKBA was that the
    IJ did not have regard for Ibrahim’s criminality. The SIJ were
    empowered to find on that basis and should have done, because
    Article 8 is clear that the right to family life does not have to
    be applied if not applying it would be in the interests of
    preventing crime and disorder. It clearly was. So the IJ did not
    reasonably apply the law and the SIJ could have over-ruled. The
    post also says ‘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’”. Ah ! So the SIJ did go behind the findings of fact and make
    judgements on the merits of the case. I am very dubious of the
    ability of either the IJ or the SIJ to make far-reaching judgements
    on the quality of someone’s family life. The IJ said “Mr Ibrahim
    enjoyed a close and loving relationship with his wife and
    children”. Maybe. Who can be sure ? “In Mr Ibrahim’s case, the
    delays in effecting his removal worked in his favour.” They
    certainly did, and it is very likely that he took the opportunity
    of the delay to engineer a family situation that he knew would work
    in his favour. Nobody has said why such delays took place. They
    should. “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.” The post used the word ‘Therefore’ but I don’t see that
    it shows that those arguments are misplaced. There is a perception
    amongst the public at large that the HRA does favour certain groups
    and perceptions are important. There needs to be a clear
    demonstration to the public that the perception is wrong, and that
    has not happened yet. The last two paragraphs of the post suggest
    strongly to me that the decisions of the IJ and the SIJ were wrong.
    As an aside, I wonder why a charge of involuntary manslaughter was
    not put. It seems to cover exactly what he did by leaving the girl
    (alive) under his car and running off. There must have been
    evidence available that she would not have died if taken
    immediately to hospital.

    • “the Senior Immigration Judges would not go behind the findings of fact made below unless such findings of facts were unreasonable… ” i.e. the SIJ could make a judgement on the reasonableness of the prior judgement. One of the bases for the appeal by the UKBA was that the
      IJ did not have regard for Ibrahim’s criminality. The SIJ were empowered to find on that basis and should have done, because Article 8 is clear that the right to family life does not have to be applied if not applying it would be in the interests of preventing crime and disorder. It clearly was.”

      Unfortunately for “Call it justice” it clearly was not. If you had read the judgement itself the SIJ’s involved took great lengths to explain why there was no material error in law in the IJ decision contrary to the assertions of the UKBA. The UT found: that the IJ was entitled on the evidence presented (contrary to UKBA press statements) that the subject had established a family life with his partner and their four children, that the IJ had fully considerred the criminality of the subject and had correctly accepted that there would be a breach of all of the family members Article 8 rights if the subject was expected to return to Iraq to seek entry clearance, and the IJ was also entitled to find on the evidence that such family life would out weigh the public interest in removal of a accepted criminal and immigration offender.

      The UT correctly stated that they could not go behind the decision of the CPS to prosecute for a minor traffic offence (given that a young girl tragically died) and Criminal Courts finding of guilt for that offence. They have no jurisdiction to hear an appeal of the criminal conviction by the father of the deceased. There may well be a problem with how the CPS and the courts deal with this sort of traffic caused death but that is a matter for parliament and the CPS.

      Further UKBA on conviction did not seek to exercise their power to deport the subject in 2003 nor after the further offence in 2003 when they had the power to do so “presence no longer conducive to publid good”. Further delay at the UKBA gave rise to an expectation that there would be no removal despite every thing.

      All the political grandstanding now by the government about the Human Rights Act is so much hot air. They will not withdraw from the ECHR in any event.

  3. @Matthew Goldborough
    I salute you at taking the time to make the necessary points to @call it justice

    Part of the difficulty is the insidious link that continues to be drawn between immigration which is an administrative matter and the criminal law which is handled by the police, CPS and courts.

  4. It is a matter of opinion, and thank you but I had read the
    full judgement. I maintain my stance that it is very clear that it
    was not in the interests of prevention of crime for article 8 to
    have been applied, and there was therefore a material error in law.
    The IJ disagreed but I believe the vast majority of those members
    of the public who would have a view would agree that the
    criminality of this persistent offender was such that he was, and
    is, most likely to re-offend. He did of course offend several times
    after the tragic incident of 2003. It is missing the point to say
    that this was just a “traffic caused death”. Ibrahim ran off whilst
    Amy was alive rather than trying to ensure that she would receive
    all efforts as soon as possible to keep her alive. This showed a
    callousness and a mens rea that demonstrated his propensity towards
    criminal offending, and should not be ignored. A passing, and
    rather mild, reference to it in the judgement was wholly
    inadequate. The delays of the UKBA were outrageous and have
    contributed to the state of affairs that we have now. I share the
    doubt that the government will do anything substantial, though
    making the deportation process quicker and more efficient for
    failed asylum seekers, particularly criminal ones, would be a huge
    step forward. PS Driving Whilst Disqualified is not a “minor
    traffic offence”. In 2003 it usually attracted a custodial
    sentence, on first offence, as it did in this case, but no longer
    does so. It still remains a serious offence.

  5. I agree with the comment by Peter M B English. Also call it
    justice is spot on with this observation. “There is a perception
    amongst the public at large that the HRA does favour certain groups
    and perceptions are important. There needs to be a clear
    demonstration to the public that the perception is wrong, and that
    has not happened yet”. I would take it a step further and say it is
    all about perception and deception. My experience would suggest
    that given that the ECHR has been part of the domestic law in many
    European countries since it was drafted, it means that the UK was
    60 years behind the times and inevitable that prisoners would use
    the HRA to claim the rights they are entitled to. Professor David
    Downs in his Contrasts in Tolerance (Post-war Penal Policy in the
    Netherlands and England and Wales) refers to the work of Rijksen
    and the Utrecht school making a direct impact on the judiciary with
    the publication of his Prisoners Speak Out. The public were furious
    how badly prisoners were treated within the criminal justice
    system. On the other hand, in the UK the right wing media keep
    harping on about how our prisons are like hotels. And, some of the
    public believe this lie to be the truth. The media do not say that
    they have a hidden agenda and that their real fear of the HRA is
    Article 8, in relation to privacy of celebrities, and how this
    might curb their excesses. David Cameron does not assist matters
    with his off the cuff remarks attacking the HRA. For example,
    stating in the House of Commons that the idea of giving prisoners
    the vote makes him physically sick. In 1968, Sweden gave all
    prisoners the vote thereby giving them a voice in Parliament.
    Recently, the BBC stated “A big test for David Cameron will come
    over issues such as giving prisoners the vote”. And this is going
    to make him sick, he will have to apply the Hirst test. It is
    referred to in Frodl v Austria. Para 34 “Under the Hirst test,
    besides ruling out automatic and blanket restrictions it is an
    essential element that the decision on disenfranchisement should be
    taken by a judge, taking into account the particular circumstances,
    and that there must be a link between the offence committed and
    issues relating to elections and democratic institutions”. Mark
    Harper of the Cabinet Office was using deception when he made his
    written statement claiming that the government would ensure that
    those serving over 4 years would not get the vote. The truth is
    that the Grand Chamber decision is final and cannot be overturned
    by the UK, it being the losing party in the action. The UK cannot
    go backwards as though the case never happened, it can only go
    forwards on the straight and narrow path I have laid down. Any
    slight deviation and the UK steps into a legal minefield. The
    Parole Board and Ministry of Justice have made another big mistake
    in their attempts to gag Eddie Guilfoyle from speaking to the
    media. Elias J, in my case, made a so sound judgment that the Home
    Office thought better of trying to lodge an appeal.
    http://www.bailii.org/ew/cases/EWHC/Admin/2002/602.html Last week,
    my probation officer informed me that the MoJ was considering
    applying to the Parole Board to add a licence condition which
    prevents me speaking to the media. I said that they would have a
    job, which is exactly the words used by my solicitor, Elkan
    Abrahamson of Jackson & Canter LLP, Liverpool, when I told
    him about what she had said. My Site Meter has informed me that the
    MoJ is monitoring my blog. Speaking to the Independent in 2006
    Kenneth Clarke said: “In these home affairs things I think
    occasionally it’s the duty of politicians on both sides to turn
    round to the tabloids and right-wing newspapers and say, ‘You have
    your facts wrong and you’re whipping up facts which are
    inaccurate’.”

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