Schmelz v The Immigration Appeal Tribunal [2004] EWCA Civ 29

Case No C1/2003/1705

[2004] EWCA Civ 29

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT

ADMINISTRATIVE COURT LIST

(MR JUSTICE SULLIVAN)

Venue Royal Courts of Justice

Date Thursday, 15 January 2004

Strand

London, WC2A 2LL

B E F O R E:

LORD JUSTICE BUXTON

LORD JUSTICE THOMAS

MR JUSTICE PARK

Between

WOLFGANG SCHMELZAppellant

-v-

Between

THE IMMIGRATION APPEAL TRIBUNALRespondent

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street, London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR SATVINDER JUSS (instructed by Immigration Advisory Service, London, SE1 4YB ) appeared for Appellant

MS L GIOVANNETTI (instructed by The Treasury Solicitor, London, SW1H 9JS) Appeared for Respondent

J U D G M E N T

LORD JUSTICE BUXTON:

This

[1]is an appeal brought with the leave of the judge from a decision in judicial review proceedings of Sullivan J in which he reviewed the determination of the Immigration Appeal Tribunal notified on 29 May 2002. That Tribunal had refused the claimant leave to appeal against a determination of an adjudicator of 18 months ago.

[2]The claimant, Mr Schmelz, is a citizen of the Federal Republic of Germany. He was born in 1950, so he is now in his 50s. He had come to Britain in 1979 and claims to have worked thereafter in business with his uncle. Neither in respect of that work, nor in respect of any other employment he claims to have undertaken, was there any evidence of the payment of income tax or national insurance. He was granted indefinite leave to remain in 1985.

[3]The proposal on the part of the Secretary of State to withdraw that leave arose from a conviction of a serious offence of conspiracy to rob. The detail of that offence is set out in the adjudicator's determination, which was a detailed, careful and accurate account of the issues. The adjudicator said:

"[Mr Schmelz] was involved with at least six others in the highjacking of an armoured Securicor van and was later found to be the prime organiser of the crime."

That was the view of the learned judge who tried the case in which Mr Schmelz pleaded not guilty. He continues to this day to assert his innocence. A Crown Court judge who has heard a detailed trial is in a uniquely fitted position to make such a judgement. I continue with the adjudicator's account:

"The van had been on a regular routine journey from Southampton to the Midlands. One of the highjackers had been employed by Securicor, and had delayed activation of the alarm system after his fellow Securicor driver, who was not involved, received a planned phone call claiming that there was bomb underneath the van which would be detonated if the van did not follow the blue Ford Escort car. The robbery was abandoned although fire was caused by the thermal cutting rods which were used to get into the van."

[4]The trial judge considered that the case against the appellant was overwhelming and that it was the appellant who had recruited people to take part in his offence. No violence had been used, but the innocent Securicor van driver had been forced to contemplate a horrific death by the prospect of being blown up if he did not comply with the conspirators' wishes.

[5]The judge, who knew all the facts, sentenced Mr Schmelz to 12 years' imprisonment. At the trial Mr Schmelz was represented by leading counsel. It would have been part of his responsibility to give Mr Schmelz advice at the end of the trial as to whether there was a reasonable prospect of appeal either in respect of conviction or in respect of sentence. No such appeal was promoted at that time, although we understand that there is some suggestion that Mr Schmelz still wishes, eight years later, to appeal against his conviction. On 1 March 2002 Mr Schmelz was released on licence from that sentence. He has remained in this country, as he told the adjudicator, in various aspects of work: again there is no proof of that.

[6]This offence, although by far the most serious with which Mr Schmelz had been involved, was not the only occasion upon which he had been found guilty of offences of dishonesty since coming to this country. Before the adjudicator he confirmed under cross-examination that he had been convicted of burglary in 1985. It also appears from one of the records of interview with probation officers, which has not been contradicted, that he told a probation officer that he had also been convicted of offences in 1987, 1988 and 1992, one at least of which involved the receiving of proceeds of stolen property.

[7]The Secretary of State seeks to exclude Mr Schmelz from this country on the grounds that his presence here is contrary to the public interest. He had to bear in mind, as everyone else has had to bear in mind, the requirements of the law of the European Community in that respect, which makes it clear that the normal latitude in respect of expulsion of citizens does not apply in the case of at some citizens of the Union. To quote the authorities, there must be demonstrated before a Community migrant worker can be expelled a serious threat to one of the fundamental interests of society. The jurisprudence makes it clear that the assessment of that threat must relate to the personal conduct of the citizen; that deportation may not take place simply on grounds of general deterrence; and that the commission of a crime in itself cannot constitute a ground for removal.

[8]Mr Schmelz's case is two-fold. First, that he no longer poses a danger to the interests of society in this country because he has served his sentence, behaved exemplarily within that sentence, and received a favourable report at the end of the sentence from a probation officer who then interviewed him. Secondly, even if that were not so, the offence that he committed was not sufficient to justify a deportation in terms of community law, either in itself, or when balanced against the other considerations upon which he would wish to rely.

[9]The further considerations that were ventilated in the proceedings were (apart from what was described as his reformed character) an alleged family connection with a lady, which the adjudicator not was not persuaded to exist with sufficient certainty; and also his work record.

[10]The adjudicator heard evidence, including evidence from the probation officer, a Miss Lin Barrett, who produced an OGRS reconviction assessment. She also said that he had made considerable progress and that she considered that the work that had been done with him had a positive outcome. She recommended that that constituted a basis for remaining in Britain.

[11]The adjudicator addressed the exercise that he had to undertake in paragraph 13 of his adjudication, saying in opening that he had taken note both of the criteria in paragraph 364 of HC395 and of the jurisprudence to which he had been referred by counsel then appearing. It is clear from that statement, contrary to the submissions of Mr Juss who has appeared today, that the adjudicator had in mind the special position with regard to migrant workers of the European Union. That is reinforced by the fact that at the end of paragraph 13 he makes specific reference to a leading authority in that field to which I shall return.

[12]The adjudicator set out the lack of family ties, the lack of owning a property, the uncertainty about employment and the other factors as to Mr Schmelz's position. He did not specifically refer to the evidence of Miss Barrett. In my judgment he did not there need to do so, because he had already set it out in his determination. The adjudicator then said:

"I find therefore that there is little to weigh against the fact that this appellant has been sentenced for a particularly serious crime -- the sentence of 12 years reflects that this was an aggravated theft which was combined with the threat of violence. I note the judgment of the Court of Appeal in Marchon and find that the fact that the risk of reoffending is not high does not outweigh the public interest in this appellant's deportation. He is being deported not to deter others from similar crimes but because the seriousness of the crime is such that it is in the public interest that they should be protected from even a small risk of such a crime being committed again."

He therefore dismissed the appeal.

[13]I would make two points. First, the adjudicator accepted, as is clear from that passage, that the likelihood of re-conviction, like the risk of reoffending, was not high: he drew that partly from what Miss Barrett had told him, and partly he must have drawn it from the OGRS report. That report was wholly unsatisfactory. It is a purely mathematical computation based upon previous convictions. It proceeded on the basis that the only previous conviction that Mr Schmelz had was for the conspiracy to rob in 1994. As we know from other evidence, that is not so. In that respect, therefore, the adjudicator was, in my judgement, being particularly favourable to Mr Schmelz in accepting that the risk of reoffending was not high, but accept it he did and we proceed on that basis.

[14]Secondly, it is plain from the adjudicator's determination that he did not find, as was suggested in at least the written submissions before us, that the sentence of 12 years, in itself and without further consideration, justified the deportation. He asked himself whether there wee matters to place in the balance against that sentence, and made that balancing exercise. Therefore he did not commit the error that was suggested of thinking that an offence alone would be sufficient to justify deportation.

[15]However, even if he had taken that view, he would, in my judgment, have been justified in so finding. That is established by the case in this court of Marchon v Immigration Appeal Tribunal [1993] Imm AR 384, to which he referred. The headnote, which was accepted by Mr Juss properly to state the law, read as follows:

"There were some exceptional cases in which past criminal conduct itself justified deportation of an EC citizen. The present case fell into that category."

Mr Juss accepts that as a statement of community law, but says that the adjudicator would not have been right in thinking that the present case was on a par with Marchon. He points out that in Marchon a National Health specialist was guilty of the appalling offence of smuggling heroin. He was sentenced to 14 years' imprisonment, but this court reduced that sentence on appeal to 11 years. Thus, bad though the Marchon case was, it received a lower sentence than the unappealed 12 years to which Mr Schmelz was sentenced.

[16]In my judgement it cannot possibly be said that it was not open to the adjudicator to treat this case, with all its aggravating features which I will not reiterate, as being one that fell within the ambit of the jurisprudence set out by the court in Marchon.

[17]Secondly, it is submitted that the adjudicator did not conduct a sufficient balancing exercise in paragraph 13, granted that, as is accepted on all sides, the test is one of proportionality and not merely of Wednesbury unreasonableness. I cannot accept that submission either. The adjudicator went into the facts of the case in considerable detail, appreciating that he had to strike a balance. He struck the balance that was open to him. It was suggested that, as a matter of law in a community case, it was not open to the adjudicator to take the approach that he took. I do not understand that submission, if that is what was made, because, granted that the test is one of proportionality, it is still the case that the tribunal has a significant area of discretion in assessing where a particular case falls. The adjudicator made that assessment.

[18]The Immigration Appeal Tribunal was, in my judgement, entirely correct and justified in its short, but wholly adequate, assessment in deciding that there should be no appeal to it and that such an appeal was bound to fail. In those circumstances, the learned judge was entirely right to be unpersuaded by the arguments put before him. It cannot possibly be said that the Immigration Appeal Tribunal erred in law; it cannot be said that the adjudicator erred in law. I would therefore dismiss this appeal.

[19]I would make three further observations. The first is that the nature of this case in the form that it has taken amply underlines the wisdom of Parliament in section 101(2) and (3) of the Immigration Act 2002 in limiting judicial review appeals in this court. The only question here ought to have been whether the Immigration Appeal Tribunal had made an error of law, which plainly it did not. However, because of the way in which it has become customary to pursue these cases, the court has been drawn, as was the judge below, into a review of the determination of the adjudicator, which has effectively meant that two High Court judges and three judges of this court have considered an appeal from the adjudicator, which the Immigration Appeal Tribunal lawfully and properly was not prepared to entertain.

[20]I do not criticise those who brought these proceedings because they were entitled on behalf of their client to take every opportunity that the jurisprudence of this court affords to them. But it is entirely right that a short method of appeal against the Immigration Appeal Tribunal's refusal of leave, such as is provided by the new Act, is the appropriate course. It is inappropriate for this court to be further involved in assessing what is merely a question of whether there should be permission to appeal to a lower tribunal.

[21]The way in which the jurisprudence works also has the effect that this court is in effect invited to start again on the whole exercise. The fact that I have not made any reference to the admirable judgment of Sullivan J, from which we are in form hearing the appeal, is a demonstration of how these cases now involve this court in inappropriate reference to the earlier authority of the adjudicator.

[22]The second point is that, having heard the application and having dismissed it, in a detailed and cogent judgment in which he took every point that could have been taken, Sullivan J was prevailed upon to grant leave to appeal to this court. In granting it he said:

"Since proportionality is in issue, there is room for more than one view. Even if not disproportionate the impact of the deportation order on the claimant will be severe. These two factors have led me with some hesitation to grant leave."

[23]With unfeigned respect for a judge whose knowledge and standing in this area of work are without parallel, neither of those grounds was a good ground for granting leave to appeal to this court. It is almost always the case that in a proportionality case there is room for more than one view. The question is whether the view taken by the adjudicator fell within the limits of lawfulness open to him. The judge rightly found that they did. Secondly, whilst not seeking to diminish the impact of the order on the claimant, the fact that an order bears hardly on a person is not a ground for giving permission to appeal if there is no reason to think that a criticism of law could be based on that ground.

[24]The third observation I make is that there is before the court on this application a bundle that extends to 463 pages. It is not indexed; it is difficult to understand the relationship of matters in it; and over 300 pages are taken up with photocopies of authorities, almost none of which were conceivably relevant to the matter before the court. No attention has been paid to the Practice Direction on the citation of authorities,

[2001] 1 WLR 1001

, which makes it clear how such bundles should be prepared. That Practice Direction was made not merely for the convenience of the court but so that those appearing before it should not be drawn into excessive expense, which has clearly happened in this case, a case which we understand is being financed by public funds. We are also concerned to see that the solicitors involved in this case are an experienced, indeed I understand a public, body who conduct a great deal of work in this area. I would direct that the need for proper preparation of the bundle and for economy in that being done be drawn to the attention of the Chief Executive of the solicitors in this case, and also to the Chief Executive of the Legal Services Commission so that in future cases such as this are only supported by the proper amount of material drawn up in the proper way.

[25]As I have indicated, I regard this appeal as having no merit and I would dismiss it.

LORD JUSTICE THOMAS: I agree.

MR JUSTICE PARK: I also agree.

Order

Appeal dismissed. No order as to costs. Public funding assessment of the appellant's costs.