CB (United States of America) v Entry Clearance Officer (Los Angeles) [2008] EWCA Civ 1539

Case No C5/2008/1371[2008] EWCA Civ 1539
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No OA/19826/2007]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 13 th November 2008
Before
LORD JUSTICE LAWS,LORD JUSTICE CARNWATHLORD JUSTICE RICHARDS
Between
CB (UNITED STATES OF AMERICA)AppellantENTRY CLEARANCE OFFICER (LOS ANGELES)Respondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr J Johnson (instructed by Treasury Solicitors) appeared for Appellant.Ms L Giovanetti & Ms A weston (instructed by Messrs Bates Wells & Braithwaite) appeared for Respondent.
Judgment
[1]This is an appeal by the Entry Clearance Officer with permission granted by Stanley-Burnton LJ on 1 July 2008 against a decision of the Asylum and Immigration Tribunal (“AIT”), Senior Immigration Judge Warr, dated 16 April 2008, by which the Senior Immigration Judge upheld the earlier decision of Immigration Judge Bird. Immigration Judge Bird had allowed the respondent’s appeal against the Entry Clearance Officer’s refusal of entry clearance.[2]The respondent is a citizen of the United States of America, born on 20 October 1971. He is a professional singer, performing under the name Snoop Dogg. On 27 February 2007 he was granted a work permit for work in the United Kingdom. On 3 March 2007 he applied for an entry clearance, relying on his work permit to come to the United Kingdom for two weeks to perform at some six concerts. A reasoned letter was sent supporting the application; among other things, it indicated that he proposed to bring an entourage of thirty supporting staff. The letter also referred to the very large ticket revenue that might be expected from the concerts, and other benefits including employment in the relevant localities and the sale of compact discs.[3]Finally, the letter mentioned an incident which had taken place at Heathrow in April 2006 when the respondent had been in transit to Johannesburg. Public disorder offences had been committed and the respondent had received what is called an adult caution. I will have to return to the details of that incident. I should also note at this stage that the respondent has previous convictions in the United States in 1990 and 1991 for offences which included theft and possession of fire arms, though those convictions may, as I understand it, have been spent under legislation equivalent to the provisions of English law dealing with spent convictions. On 19 September 2007 he was convicted of an offence of possessing a deadly weapon -- a police baton -- and other offences. They had been committed in September and October 2006.[4]On 23 March 2007 entry clearance was refused by the Entry Clearance Officer at Los Angeles. The refusal notice stated:
“I have considered your application carefully based on the information on the application form and the documentation submitted. But in the light of your character/conduct/associations I consider it undesirable to issue you an entry clearance and I am not prepared to exercise discretion in your favour [Rules HC 395 paragraph 320(19)]. BECAUSE You have applied for an entry clearance to enter the United Kingdom in line with the work permit issued to you as a performing artist. However your presence is considered to be non-conducive to the public good in view of your previous convictions that are unspent; that following a fracas in Heathrow last year you were allowed to leave the United Kingdom on bail, but on return were refused leave to enter on non-conducive grounds, cautioned by the police for public order offences and subsequently removed from the United Kingdom; that there are outstanding charges against you for drugs and firearm offences both in the USA and elsewhere and that your presence in the UK could lead to further public order offences of violent crime. Accordingly your application is refused.”
Paragraph 320(19) of the Immigration Rules has the heading:
“Grounds on which entry clearance or leave to enter the United Kingdom should normally be refused.”
Then this follows:
“(19) where, from information available to the Immigration Officer, it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him leave to enter.”

BECAUSE

[5]The respondent’s appeal against the refusal of entry clearance was allowed by Immigration Judge Bird on 21 January 2008, and I must return to her decision. The ECO sought a reconsideration which was ordered on 6 February 2008. Senior Immigration Judge Warr, making the order, stated:
“The Secretary of State criticises the immigration judge for misdirecting herself on the issue of future risk and on her reasoning and for giving directions in this case. The grounds of application constitute arguable legal challenges. All the grounds of application may be argued.”
[6]Senior Immigration Judge Warr also conducted the reconsideration, which was heard on 7 April 2008, and the Senior Immigration Judge’s determination promulgated, as I have indicated, on 16 April 2008. The Senior Immigration Judge held, as I read his determination, that no material error had been perpetrated by Immigration Judge Bird, and so he upheld her decision allowing the respondent’s appeal.[7]Before addressing the reasoning of either tribunal, it is convenient to describe the facts of the incident at Heathrow Airport in April 2006 on which the ECO particularly relied before Immigration Judge Bird.[8]In April 2006 the respondent was on his way to Johannesburg. He changed aircraft at Heathrow. An incident of disorder took place. It involved a number of members of the respondent’s entourage. It started after members of that entourage were asked to leave the British Airways lounge. The police were involved. The group failed to follow instructions given by them. Part, but not all, of the incident was captured on CCTV. The ECO put in evidence before Immigration Judge Bird a number of witness statements which had been gathered in the course of the police investigation of the incident. They included the following: first a statement from Mike Goedeker. He was an American who happened to be travelling through Heathrow at the time. Part of his statement reads as follows:
“The group as a whole appeared to be friends of Snoop Dogg and as the group walked about they were more like ‘a gang’ with Snoop Dogg as the leader… It seemed to me as if Snoop Dogg was advertising his celebrity status to people. I would even go so far as to say that he was showing off.”
Then later:
“…The behaviour of Snoop Dogg and his entourage was giving me cause for concern. As I say I got the sense that ‘something bad’ was going to happen due to the general behaviour of the group. I have had training in risk assessment and conflict training. As a consequence with my previous experience coupled with the training I have undertaken I felt that there was potential for a problem to occur. The group came back downstairs and Snoop Dogg proceeded to the bar saying that he wanted to rouse things up at the bar and see how many people take pictures of him. Rouse was not the exact words, it was more like wake people up and raise some ‘shit’. Having been in the bar they made their way to the BA lounge with the laptop still playing. At this point I was becoming increasingly concerned that something was going to happen. I saw that there were several business people exiting the BA lounge soon after the group had entered. Several of them looked annoyed and shocked.”
Then later:
“…The group were by the World Duty free shop. I then heard a smashing of glass and saw that the whisky stand at the World Duty Free shop had been knocked over. The Police were struggling with members of Snoop Dogg’s group… Although I did not see much of the actual incident I did see that people stood by were obviously scared at what was happening. I even noted that several of the Police officers seemed scared and they tried to contain the group.”
Then again, later on:
“… It was my opinion that this incident was due to the arrogant behaviour of Snoop Dogg and his group. As far as I could see, the incident was caused entirely by their behaviour. The Police did not start it… He [that is the respondent] was arrogant and his demeanour I felt encouraged bad behaviour from the other members of his group. As an American, I was ashamed by these events and disappointed and disgusted that a person with such a high public profile should act in such a manner. I would hope that he would be a role model for younger people.”
There was also a statement from Police Sergeant Fiona Duggan. She, amongst many other things, said this:
“…Snoop Doggy Dogg was shouting extredmis [sic], his face was angry, he was waving his arms.”
[9]Another officer, PC Brett, said that the respondent was cooperative when he was arrested and handcuffed. We have looked at sections of all the statements during the course of the hearing this morning. The respondent himself was to admit that he had committed a public order offence contrary to section 4 of the Public Order Act 1986. The police judged (it appears) that there was sufficient evidence to prosecute him for the offence, but he was instead given an adult caution, as I have already indicated. That was on 11 May 2006. It is right to observe that the ECO does not suggest that the appellant himself used any actual physical violence in the course of the incident. Five members of the respondent’s group also admitted offences contrary to section 4. Three were cautioned; two were prosecuted. They were convicted on their guilty pleas. In the course of his sentencing remarks, the district judge observed that the difficulties followed an argument in the BA lounge, that the group failed to follow the instructions of the police and that the disorder was precipitated by decisions made by the BA staff and the police. That last point was something that was to receive a degree of emphasis in the determination of Immigration Judge Bird.[10]The immigration judge drew attention (paragraph 31) to work done in the United States by the respondent with young black teenagers and the establishment of a football league in inner city areas, the aim being to stop these young people from, as it was put, “joining gangs or doing drugs”. Further (paragraph 32 of the determination), in 2007 the respondent had performed in a number of European countries and there had been no evidence of any violent incident. This is what the immigration judge said about the Heathrow incident: “34. […] What the Entry Clearance Officer relies on is the incident at Heathrow and having viewed the DVD video footage and considered the witness statements I would tend to agree with District Judge Marshall that the disorder was precipitated by decisions made by BA staff and the police. Certainly from the DVD footage that I saw the appellant was pushed twice by a police officer and he did not retaliate. The witness statement of PC Christopher Brett similarly shows that the appellant was found to be on the floor and the police officer states in his witness statement dated 26 April 2006: ‘Due to the volume of police officers and members of the public that were in the shop it was a very confusing scene, several bottles of alcohol had also been broken and the floor was very slippery. My ASP was already drawn at this stage. I confronted a male who was already on the floor and told him to lay face down. This he did without any hesitation. I then placed his arms behind his back and due to his compliant nature. I passed my ASP behind me to PC 296 Virtee which he took off me. I then had a set of rigid handcuffs passed to me by PS Baird, cuff number 891541. I then placed this male in handcuffs in the rear back to back position. At this stage I recognised this male as a musician who goes by the name ‘Snoop Doggy Dogg’.’35. I have read the various statements that were provided and in these statements there is no evidence that the appellant was responsible for any public disorder or initiated it. As DJ Marshall found that the disorder was precipitated by decisions made by BA staff and the police. The appellant was given a police caution which is not a criminal record.36. The appellant’s behaviour on the DVD did show him interacting with the public in particular children in a non-threatening way. The children were laughing and generally enjoying either dancing or singing or playing music.” ‘Due to the volume of police officers and members of the public that were in the shop it was a very confusing scene, several bottles of alcohol had also been broken and the floor was very slippery. My ASP was already drawn at this stage. I confronted a male who was already on the floor and told him to lay face down. This he did without any hesitation. I then placed his arms behind his back and due to his compliant nature. I passed my ASP behind me to PC 296 Virtee which he took off me. I then had a set of rigid handcuffs passed to me by PS Baird, cuff number 891541. I then placed this male in handcuffs in the rear back to back position. At this stage I recognised this male as a musician who goes by the name ‘Snoop Doggy Dogg’.’[11]Before Senior Immigration Judge Warr it was argued for the ECO, amongst other things, that the immigration judge had “played down” the Heathrow incident, had failed to pay due deference to the Entry Clearance Officer as the primary original decision maker, and had applied the wrong test in assessing whether the refusal of entry clearance to the respondent would be conducive to the public good. The Senior Immigration Judge concluded, however, that the immigration judge had made none of these errors nor any other.[12]It is convenient first to consider the test to be applied under paragraph 320(19). It is common ground that it is for the applicant, the Entry Clearance Officer, to prove any primary facts that need to be established if the question whether refusal of entry clearance is conducive to the public good is to arise or not. Such facts have been described in this case as precedent facts -- that is not, I think, necessarily a very helpful expression; it has different overtones in other public law contexts. But at all events, in this case, there was really no dispute as to any relevant primary fact; in particular, the Heathrow incident was, as I have said, partly shown on CCTV recording and there was ample witness evidence about it. Neither the respondent nor, so far as I am aware, any of the members of his entourage, as it has been called, really disputed what had happened.[13]Once the relevant facts are shown there is then an evaluation to be made as to whether exclusion on those facts would conduce to the public good. In a case such as this, it seems to be common ground that the decision maker is essentially to form a view as to whether the applicant’s presence here could or might lead to disorder or the commission of crime. The immigration judge correctly recorded the ECO’s submission that the respondent’s presence in the United Kingdom could lead to further disorder, but she proceeded on the basis that the Entry Clearance Officer had to prove that the respondent’s presence would in fact lead to such disorder. Here are the relevant passages in her determination:
“26. I therefore have to consider whether or not the evidence provided by the respondent [that of course is the ECO] shows that the appellant’s exclusion is desirable and that his entry to the United Kingdom would give rise to public disorder offences and or give rise to violent crime. 28. I remind myself that it is for the respondent to show on a balance of probabilities that the appellant’s presence in the United Kingdom will give rise to violence and further public disorder. 33. What I have to decide is whether the appellant’s presence in the UK will lead to commission of offences and for that reason his exclusion is justified for the public good. 34. I find that it has not been shown on a balance of probabilities that the appellant’s presence in the United Kingdom will give rise to violence or public disorder.”
[14]It seems to me inescapable, given the terms in which the immigration judge expressed herself in these passages, that she has treated the public good issue as one involving a requirement upon the shoulders of the ECO to prove a future fact on the balance of probabilities, namely that if admitted to the United Kingdom the respondent would be the cause of violence and/or disorder. The case was not so put by the Secretary of State. Such an approach to the immigration rule is, as I understand it, disavowed by Ms Giovannetti for the respondent before us. What is involved is an evaluation of risk to the public. The question is: is there a substantial risk of disorder? That was not the question which the immigration judge asked herself. Accordingly, as it seems to me, she fell into an error of law that was plainly material to the decision she had to make. At the very least, it was her duty to give weight to the Secretary of State’s approach to the non-conducive rule and that approach certainly involved an evaluation of risk.[15]This point also engages the next ground in the appeal. In this particular area, unlike some other areas of immigration and asylum law, a degree of deference is due to the original decision maker. The subject matter is the good of the United Kingdom generally. That, it may be said, has strategic or overarching elements where the Secretary of State and indeed his Entry Clearance Officers have special responsibility. So much is shown by the decision of this court in N (Kenya) v SSHD [2004] EWCA Civ 1094. In that case May LJ said this at paragraph 64:
“Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality. It is for the adjudicator in the exercise of his discretion to weigh all relevant factors, but an individual adjudicator is no better able to judge the critical public interest factor than is the court. In the first instance, that is a matter for the Secretary of State. The adjudicator should then take proper account of the Secretary of State's public interest view.”
[16]Later at paragraph 83

Judge LJ, as he then was, said this:

“The "public good" and the "public interest" are wide-ranging but undefined concepts. In my judgment […] broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation. The Secretary of State has a primary responsibility for this system. His decisions have a public importance beyond the personal impact on the individual or individuals who would be directly affected by them. The adjudicator must form his own independent judgment. Provided he is satisfied that he would exercise the discretion "differently" to the Secretary of State, he must say so. Nevertheless, in every case, he should at least address the Secretary of State's prime responsibility for the public interest and the public good, and the impact that these matters will properly have had on the exercise of his discretion. The adjudicator cannot decide that the discretion of the Secretary of State "should have been exercised differently" without understanding and giving weight to matters which the Secretary of State was entitled or required to take into account when considering the public good.”
[17]Now it is not suggested that the Heathrow incident itself constituted an example of serious or very serious crime. These passages in the judgments in N show, however, that, where the question is whether a person should be excluded from or removed from the United Kingdom because to do so would be conducive to the public good, the Secretary of State’s view has a particular force to which the immigration judge has to have regard. Mr Johnson’s short point in this present case is that there is simply no trace of the immigration judge having embarked on this exercise; and that seems to me to be a point well taken. In particular, there is nothing to show that the immigration judge considered whether some different test as to what was conducive to the public good might properly be adopted -- different, that is, from the contention being advanced by the Secretary of State which was, as I have already explained, in terms of risk evaluation. To that extent these two first grounds of appeal run together, and it seems to me that, whether separately or cumulatively regarded, the immigration judge has fallen into error in respect of them.[18]Lastly, it is said that Immigration Judge Bird erred in considering that the part played by the police in the Heathrow incident in some way reduced the respondent’s responsibility for the disorder, and further erred in concluding that there was “no evidence” (paragraph 35) that the respondent was responsible for any public disorder on that occasion. Now I would wish to emphasise that, in the ordinary way, I would hesitate long before interfering with an immigration judge’s assessment of a purely factual matter, especially if she had, as here, viewed a CCTV recording of the relevant interest. But it seems to me simply wrong to say that there was no evidence of the respondent’s responsibility. There plainly was such evidence, in particular from Mr Goedeker and Police Sergeant Duggan. Ms Giovannetti this morning has submitted that Mr Goedeker’s strictures arise from conduct by the respondent witnessed by Mr Goedeker before the actual incident of disorder. It is certainly true, reading the whole of Mr Goedeker’s statement (and I have only given extracts), that he does rely on aspects of the respondent’s behaviour taking place before the particular incident of disorder happened. But if it is suggested that the immigration judge was entitled, without any reasoning, simply to ignore those earlier aspects of the respondent’s behaviour as witnessed by Mr Goedeker so as to conclude there was no evidence of his responsibility for the disorder, I am unable to agree. At the very least, the immigration judge would have had to supply reasons for an understanding that Mr Geodeker’s statement was, in the end, no evidence of the respondent’s responsibility for the incident. I accept that there was evidence -- Mr Smith is the witness -- that the respondent tried to calm things down, but the immigration judge’s conclusion is, to my mind, inadequately reasoned; and it is to be remembered that the respondent in the end was to admit a public order offence.[19]In all those circumstances and for all those reasons, I have concluded that there were with respect plain errors of law perpetrated by Immigration Judge Bird. Senior Immigration Judge Warr should have acknowledged those errors in his conduct of a statutory reconsideration. He did not do so. Ms Giovannetti has submitted that Senior Immigration Judge Warr (see paragraph 20) correctly characterised the immigration judge’s decision as:
“…nuanced and subtle, balancing competing factors and reaching an appropriate, reasoned conclusion.”
[20]This shows, says Ms Giovannetti, a justified approach based on a balanced and proportionate judgment as to whether or not the respondent’s exclusion was conducive to the public good; in contrast, says Ms Giovannetti, to an approach that is divided into the assessment of fact according to the civil standard of proof, and then secondly an assessment of risk. It may be that an immigration judge would have been entitled to adopt a single stage approach of that sort, but it is quite clear that Immigration Judge Bird did not do so. Immigration Judge Bird’s clear references -- and I have given the paragraphs -- to the need to prove that the respondent’s presence would lead to disorder point in the opposite direction. She has, as I have held, concluded that the ECO had to undertake the burden of proving such a future fact. In my judgment, Senior Immigration Judge Warr should have recognised that that was an error, along with the other errors I have sought to explain.[21]For all these reasons, in my judgment this appeal falls to be allowed. If my Lords were to agree, the right order to make would no doubt be that the matter be remitted for the reconsideration to be re-opened.[22]Snoop Dogg was not a typical applicant for entry clearance. A lot could be said against him, both generally and in respect of the behaviour of him and his group on the occasion of the Heathrow incident. On the other hand, he had come to the country invited for a purpose which apparently was in the public interest. Immigration Judge Bird set that out. There was an official invitation to both the appellant and another performer called P Diddy to use their high profile status to speak to young black British teenagers. This event had been organised for 24 March 2007. It had been organised in response to the recent spate of shootings and killings of black teenage boys involved in gangs in London and Manchester, and that was being done in conjunction with the appellant’s management company and the Mayor of London’s office.[23]This is an appeal not against the decision of Immigration Judge Bird but the decision of Senior Immigration Judge Warr, under a procedure which is designed to enable the matter to be reviewed in the first instance within the AIT.[24]The points that were made before us by Mr Johnson were made very clearly before Senior Immigration Judge Warr and were summarised by him and he had them well in mind. But, as he said at paragraph 19, when the determination of Immigration Judge Bird was read fairly and as a whole, it was clear that the immigration judge was conducting a balancing exercise.. At paragraph 20 he referred to the alleged errors in Judge Bird’s reasoning, in particular the application of a test of balance of probabilities rather than asking the question whether the presence could lead to public disorder. Hesaid that there was a danger of reading the determination in an overly analytical manner. He continued:
“Furthermore, the Immigration Judge appears to have taken the view that overall the appellant’s submissions would be positive rather than negative in its impact on the public good and the Heathrow incident had been precipitated in a particular way.”
[25]I do not find the precise words used by the immigration judge in this case have the significance Mr Johnson attributes to them, or that the appeal turns on fine points of phraseology. Nor do I think that, in the context of a case such as this, the concept of shifting burdens of proof is helpful. It may be that in some appeals the issues are clear cut and more readily lend themselves to being analysed in this way. However, in the instant case the approach adopted by the immigration judge was one of judgement, balancing various competing factors and reaching an appropriate conclusion. It was on that basis that S.I.J. Warr upheld the decision. As I read it, he was not saying there were not arguable errors of law, but saying that such errors as there were were not significant or material, having regard to the overall question which was one of balance. The[26]It seems to me that it was open to the Senior Immigration Judge under the reconsideration procedure to take the view that the errors of law , if any, were not material and would not justify allowing the appeal. That approach is consistent with the guidance of the House of Lords in AH (Sudan) v Secretary of State[2007] UKHL 49 (see para [30] per Lady Hale). For my part, in respectful disagreement with my Lord, I would have dismissed this appeal.[27]I agree that the appeal should be allowed for the reasons given by Laws LJ. I am satisfied that Immigration Judge Bird’s reasoning proceeded on the basis of the errors of law he has identified. Senior Immigration Judge Warr, as I read his decision, found on the reconsideration that, on a fair reading of the immigration judge’s decision as a whole, there were no errors of law. In my judgment the Senior Immigration Judge was wrong in law so to find. It is true that at the last paragraph of his decision the Senior Immigration Judge said that the immigration judge had not materially misdirected herself, but I do not think that he approached the matter on the basis that there were errors of law in her decision, but they made no difference to her conclusion and were therefore not material. Had he done so, then it would of course be necessary to consider carefully his reasons for concluding that they were not material. As it is, it is for this court to form a view on the materiality of the errors without, as it seems to me, any real assistance on the point from the Senior Immigration Judge’s decision.[28]For my part, I think it possible that the immigration judge might have reached a different conclusion had she approached her assessment free from the legal errors that have been identified. For that reason the errors were plainly material. It follows that the Senior Immigration Judge erred in law in finding to the contrary.

Order

Appeal allowed

Cited in 3 later judgments