Closing the escape hatch for foreign criminals?

25 May 2011 by Maria Roche

AP (Trinidad & Tobago) v Secretary of State for the Home Department [2011] EWCA Civ 551  Read Judgment    

In the ongoing controversy over the deportation of foreign offenders, the Court of Appeal has decided that the Immigration Tribunal had not made a mistake of law in deciding that a foreign citizen who had lived in the UK since the age of 4 and had been convicted and sentenced to 18 months imprisonment for a drugs offence, following a string of other offences, should not be deported.  

The Court of Appeal also commented on the interaction between the Tribunal and appellate courts and a potential distinction between ‘foreign criminals‘ as defined by the UK Borders Act 2007 and other foreign offenders.

A series of offences

AP was born in Trinidad and is believed to have entered the UK in 1991, before or about his fourth birthday. He was given indefinite leave to remain along with his mother and siblings in 2000.

AP committed common assault in May 2006 at the age of 18, for which he was given a community sentence of 12 months and made subject to a curfew order.   A series of offences followed in quick succession: he was fined for possession of cocaine whilst awaiting trial for the assault; in August 2007 during his first community sentence he committed battery against his partner and destruction of property, for which he received another community sentence;  he subsequently breached the second community sentence and was sentenced in February 2008 to 10 weeks imprisonment suspended for a period of 24 months. Within days of the imposition of that suspended sentence, AP was found to be in possession of cocaine, which he admitted he intended to supply.  After pleading guilty to that offence, he was sentenced to a term of 18 months imprisonment in a Young Offenders Institution and the suspended sentence of 10 weeks was activated.

In the meantime, AP had become a father and the Immigration Tribunal subsequently acknowledged that, whilst he was no longer with the child’s mother, he was devoted to his daughter and was a good and caring father.  He also had close family in the UK, including his mother, siblings, nieces and nephews and other extended family.

On 15th October 2008, the Secretary of State intimated an intention to deport AP to Trinidad as she considered it to be conducive to the public good.  On 17th December 2008, she also invoked section 32 of the UK Border Act 2007 and made a deportation order on the basis that AP qualified as a ‘foreign criminal’ within the meaning of the Act, was consequently liable to automatic deportation and his removal would not, in her view, constitute a disproportionate interference with his Article 8 ECHR rights to a private and family life.

Upon release from prison on licence, AP appealed both the decision of 15th October 2008 to make a deportation order and the order of “automatic deportation” under the 2007 Act.   Shortly after making a statement for the Tribunal saying that he was extremely remorseful and getting his life back on track, he was found to be in possession of cocaine, for which he was fined.

AP committed a further offence of battery on 14th July 2009 and was returned to prison on 27th July 2009.  By the time the Court of Appeal came to hear AP’s immigration appeal, he had committed a further offence of inflicting grievous bodily harm contrary to section 18 of the Offences Against the Person Act 1861, although this was immaterial for the purposes of the appeal.

The Law 

Section 32 of the UK Border Act 2007 provides that the Secretary of State must make a deportation order in respect of a ‘foreign criminal’, defined as a person who is not a British citizen, who is convicted in the UK of an offence and either (a) sentenced to a period of at least 12 months imprisonment or  (b)  sentenced and imprisoned for an offence specified as a ‘serious criminal offence‘ by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 .  The statute deems that such deportations are conducive to the public good.  The Secretary of State may revoke a deportation order if she considers that deportation would breach a person’s rights under the European Convention of Human Right (pursuant to section 32(6) and section 33(2)(a) of the Act)

The leading case in relation to deportation before the UK Border Act 2007 came into force in August 2008 was N (Kenya) v SSHD [2004] EWCA Civ 1094.  The decision was subsequently summarised in OH (Serbia) v SSHD [2008] EWCA Civ 694 as requiring the Tribunal to consider in respect of the public interest:

• The risk of reoffending, although in the case of very serious crimes this is not the most important facet;
• The need to deter foreign nationals from committing serious crimes by leading them to understand that a potential consequence of criminal activity is deportation;
• The role of a deportation order as an expression of society’s revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes; and
• The approach of the Secretary of State, who has primary responsibility for the public interest.

One of the issues that would be commented upon by the Court of Appeal, but not directly argued in the case, was the extent to which the guidance set out in N (Kenya) and OH (Serbia) still applies.

The Immigration Tribunal’s Determinations

On 11th March 2009 the Immigration Tribunal made a determination in AP’s favour.

In paragraph 31, the Immigration Tribunal set out the factors outlined in N (Kenya) and OH (Serbia) and then made a determination at paragraphs 36 – 38 without express reference to those factors , although reference was made to the personal factors regarding AP that would result in his removal being disproportionate.

The determination did state that “in striking a fair balance between the rights of the individual and the interests of the community… our assessment of proportionality is that a decision to remove the appellant is in all the circumstances not proportionate and we allow this appeal under Article 8 of the ECHR”.

On the Secretary of State’s application, the matter was reconsidered.  Senior Immigration Judge Chalkey decided that the Tribunal had not demonstrated that it had taken the matters from N (Kenya) and OH (Serbia) into account when making its decision, and adjourned the case to a second-stage reconsideration.

The second-stage reconsideration tribunal concluded that neither AP nor his mother were reliable witnesses, that he had relatives in Trinidad and, although he saw his daughter from time to time, he did not provide any funds for her maintenance or care for her.   This tribunal was not satisfied that removal of AP to Trinidad would involve a disproportionate interference with his right to a private and family life or the rights of other members of his family, when set against the interests of the prevention of crime and protection of the rights and freedom of others.  AP’s appeal was consequently dismissed.

The decision by the Court of Appeal

AP appealed to the Court of Appeal on 2 grounds:

• there was no error of law in the Immigration Tribunal’s first decision so there never should have been a reconsideration; and
• the second decision should not have proceeded on the basis that AP had been in the UK “since he was comparatively young” because he had entered the UK before his fourth birthday.

did… direct themselves correctly as a matter of law [and] there is no reason to suppose that they had forgotten that direction when they came to their conclusion 7 paragraphs later” [§22]

The decision could not, therefore, be lawfully attacked unless it could be said that it was perverse, which was not argued by the Secretary of State nor held by Senior Immigration Judge Chalkey.  The Court held that:

Decisions weighing the public interest in deportation against the private interest of the appellant and his family in his private and family life are often difficult and cannot easily be categorised as perverse” [§23]

Lord Justice Longmore referred to MA (Somalia) v SSHD [2010] UKSC 49 when the Supreme Court reminded the Court of Appeal that it:

should not be astute to characterise as an error of law what is no more than a disagreement with the AIT’s assessment of facts”

The Secretary of State had sought to rely on the dictum of Baroness Hale in AH (Sudan) v SSHD that the AIT is an expert tribunal and it is probable that, in applying the law in their specialised field, the Tribunal will have got it right.  Lord Justice Longmore dismissed this as an impossible dictum to apply when a second expert tribunal has detected an error of law in the first expert tribunal:  how is an ordinary court of law to know which one has probably got it right?  Lord Justice Longmore considered that:

ordinary courts of law are normally as expert as specialist tribunals in detecting whether decisions are vitiated by errors of law an, at any rate in cases where there are two decisions, should make up its own mind according this court’s usual respect to the tribunal from which the appeal lies.

This may become particularly important now that there are two tiers of tribunals…  If the Upper Tribunal reverses a conclusion of a first tier tribunal because it has found that there is an error of law in the determination of that tribunal, this court will have to make up its own mind on the matter.  If, of course, both tribunals have come to the same conclusion, not only will an appeal be rare but it will, no doubt, be even rarer for concurrent conclusions to be reversed” [§25-26].

Lord Justice Carnwath agreed with Lord Justice Longmore considering that the Tribunal did not need to say more than had been said to demonstrate an understanding of the strong public policy considerations in favour of deportation.

Lord Justice Carnwath commented further on how the Immigration Tribunal should apply the OH (Serbia) factors post the UK Borders Act 2007 stating:

It seems to me at least arguable that the new Act does materially change the balance [between the factors for deportation and Article 8 rights]…”[§36]

Lord Justice Carnwath referred to the case of BK (Ghana) [2010] UKUT 328 (IAC) in which it was held that:

in the case of a ‘foreign criminal’ the Act places in the proportionality scales a markedly greater weight [in favour of deportation] than in other cases.”

Lord Justice Carnwath considered that in passing the UK Borders Act 2007, Parliament placed greater emphasis on the public policy considerations that weigh in favour of deportation and that it would be “a little surprising” if the actions of Parliament made no difference in practice:

it is readily inferred that the policy factors identified in OH (Serbia) were impliedly endorsed, and if anything, reinforced, by Parliament’s intervention … Parliamentary endorsement is arguably a matter which should be taken into account in giving greater weight to such factors when drawing the balance of proportionality under Article 8….” [§44]

Lord Justice Rimer agreed with Lord Justice Carnwath that there was scope for argument that the balancing exercise might be different for a ‘foreign criminal’ within the meaning of the UK Borders Act 2007 compared with an ordinary foreign offender.  In respect of the latter, there is no legislative presumption that their deportation is conducive to the public good.  As, however, there had been no argument on this point, the Court gave no settled view.

Lord Justice Carnwath, who is Senior President of Tribunals,  considered that the comments of Baroness Hale in AH (Sudan), that higher courts owe respect to decisions of an expert tribunal within its own specialist sphere, cannot be applied to the appellate role of the Upper Tribunal as:

To do so would be to negate the purpose for which the Upper Tribunal has been established, which is to provide specialist guidance on issues of law arising in the First-tier” [§44]

Lord Justice Carnwath noted that the structure of the Upper Tribunal is specifically designed to ensure that the equivalent specialist expertise is available on appeal for each category of work.  Lord Justice Carnwath did consider that more general principles apply to any appellate court or tribunal that:

it not overturn a judgment at first instance unless it really cannot understand the original judge’s thought processes when he/she was making material findings” [per Brooke LJ in R (Iran) v Secretary of State  [2005] EWCA Civ 982]

Lord Justice Rimer agreed that Lady Hale’s comments could not be applied to the appellate role but that if it fell to the Court of Appeal to decide whether the Upper Tribunal had made an error of law, that court should make up its own mind.

Commentary

Despite the court’s view that decisions balancing the public interest are “often difficult and cannot easily be categorised as perverse“, public opinion has been less slow to criticise recent decisions of the courts that have stayed the deportation of foreign offenders.  Voices as diverse as the Catholic Herald have criticised the use of the Human Rights Act 1998, stating:

A piece of legislation which may never have been intended for use in this way is providing an escape hatch for criminals.

As well as the recent outcry about a Sri Lankan offender who was allowed to remain in the UK after serving a 15 month sentence for robbery, purportedly partly on the basis that he had a girlfriend and censure of the Court of Appeal’s decision that a foreign national convicted for a terrorism-related offence in Tunisia and another for forging documents in Italy  must be allowed to stay in Britain while his appeal against deportation is heard, there has been criticism of the use of voluntary return programme offers of up to £1,500 in cash to persuade foreign offenders to return to their country of origin. As previously reported, The Telegraph are campaigning on the issue of deportation of foreign offenders and their commentary encompasses views that:

The judiciary has repeatedly demonstrated an alarming lack of awareness of the seriousness of the problem posed by terrorism. The safety of our country is too important to be left to their decisions.

Arguments that the Human Rights Act is unjust or that it perversely favours the human rights of criminals over law-abiding citizens and victims are, however,  misplaced as previously argued by Suzanne Lambert.  The removal of an individual who poses a risk to society is not precluded by the Human Rights Act;  instead it simply requires the Home Department and the courts to carry out a balancing exercise before deciding whether an offender can be removed.  The debate should really focus on where the balance should lie, rather than whether the judiciary should be carrying out such a balancing exercise at all.

Within the context of that debate, the Court of Appeal’s decision in AP (Trinidad & Tobago) may be welcomed by those who wish to see more foreign offenders deported as intimating an argument that the balance has already shifted towards deportation in the case of ‘foreign criminals‘ (as defined by the UK Borders Act 2007).   It remains to be seen whether the decision effectively closes the lid on the alleged ‘escape hatch‘ for such offenders.

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