RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651

[2011] EWCA Civ 651

Case No C5/2010/0956

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL

THE IMMIGRATION APPEAL TRIBUNAL

DA000362009

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/06/2011

Before

LORD JUSTICE LONGMORE

LORD JUSTICE AIKENS

LORD JUSTICE ELIAS

Between

RU (BANGLADESH)Appellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr David Chirico (instructed by Rahman & Co) for Appellant

Ms Lisa Giovannetti QC (instructed by Treasury Solicitor) for Respondent

Hearing Hearing dates : 20 May 2011

Judgment

The background to the appeal

[1]The appellant, RU, is a national of Bangladesh. He is now 47 years old. He came to the UK in 1976, when aged 14, in order to live here with his parents. He has resided in the UK ever since. In about 1986 he was granted indefinite leave to remain (“ILR”) in the UK. RU married in 1991 and went to live in Northern Ireland, where he ran a business. A daughter of the marriage was born on 1 December 1992 in Belfast. However, RU has had no contact with her for several years. RU divorced his wife in September 1998.

[2]Following his divorce, RU’s former brother in law Hafiz Abdul was shot three times in the arm by a Bangladeshi male. RU was complicit in this crime. Subsequently on 27 October 1999, after a trial at Inner London Crown Court, the two perpetrators were convicted of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861. RU was sentenced to 15 years imprisonment. The trial judge did not make any recommendation for deportation. In January 2009 the appellant was released on parole.

[3]Meanwhile, in a letter directed to RU in prison dated 23 July 2008, the Secretary of State for the Home Department (“SSHD”) notified RU that he had noted RU’s conviction and that he took a very serious view of the “offences” and was therefore considering RU’s immigration status and his liability to deportation. The letter stated that if RU considered that there were reasons why he should not be deported to Bangladesh upon completion of his sentence, he must notify the UK Borders Agency within 10 days. RU did write as directed, asserting that removal by a deportation order would infringe his rights to private and family life under

Article 8(1) of the European Convention on Human Rights

(“ECHR”) and that a deportation order would not be proportionate under Article 8(2). The SSHD responded in a Decision Letter dated 20 January 2009. It pointed out that section 32(5) of the UK Borders Act 2007 (“UKBA”) applied to RU, because he was a “foreign criminal”, as defined in section 32(1) of UKBA; that is, he is a non-British citizen who had been convicted in the UK of an offence and had been sentenced to imprisonment for a period of more than 12 months. The letter stated that the SSHD was therefore obliged, by section 32(5), to make a deportation order against RU. The letter also said that the SSHD had taken account of the UK’s obligations under the ECHR, in particular Article 8. The SSHD accepted that RU had a private life in the UK but had concluded that removal of RU by deportation to Bangladesh would not interfere with RU’s Article 8rights in a manner which was disproportionate to the exercise of the legitimate interests of the UK government in the prevention of disorder and crime and the protection of the rights and freedoms of others. Accordingly, the SSHD had decided to make a deportation order against RU, pursuant to section 32(5) of the UKBA and section 3(5) and section 5 of the Immigration Act 1971.

[4]RU appealed that decision, exercising his rights under section 82(3A) and section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The appeal was heard by a panel of the Asylum and Immigration Tribunal (“AIT”) consisting of Immigration Judge Hodgkinson and Mrs S I Hewitt on 17 April 2009. RU was represented by Mr David Chirico. He argued that the SSHD was wrong to have concluded that the interference with RU’s Article 8rights that would be caused by his removal pursuant to a deportation order would not be disproportionate to the exercise of the UK government’s legitimate interests in the prevention of disorder and crime and the protection of the rights and freedoms of others.

[5]The AIT promulgated its determination on 22 April 2009 (“the First Determination”). It allowed RU’s appeal. I will have to examine its reasons for doing so in some detail, but note here that it is paragraph 56 of the First Determination that is central to this appeal.

[6]The SSHD sought reconsideration of that First Determination and permission for reconsideration was given on 8 May 2009. The “stage one” reconsideration came before Senior Immigration Judges Storey and Mather on 18 August 2009. They ordered that the case should be adjourned to a “stage two reconsideration”. Senior Immigration Judge Storey’s reasons for that decision are dated 1 December 2009. In essence he said that the AIT had erred in law in paragraph 56 of its Decision in the way it dealt with the concept of the public good and public interest for the purposes of conducting the “proportionality” balancing exercise when deciding whether RU’s removal pursuant to a deportation order would be disproportionate to his Article 8rights. A “second stage” reconsideration was ordered, in which Judge Storey said there would be no need to reconsider the facts already found, but it would be necessary to take account of matters that had taken place since the First Determination.

[7]The “second stage” reconsideration was then heard in the First-tier Tribunal (Immigration and Asylum Chamber) before Immigration Judge Sullivan and Ms SE Singer on 5 February 2010. They reserved their decision. Their determination was promulgated on 4 March 2010: (“The Second Determination”). In this Second Determination, the First-tier Tribunal (“FtT”) stated that the findings of fact as recorded in the First Determination were not challenged. The FtT had also examined various documents, including RU’s latest witness statement on which he was not cross examined.

[8]The Second Determination concluded:(1) the removal of RU to Bangladesh pursuant to a deportation order would interfere with his rights under Article 8 in respect of his private life;

(2) the decision of the SSHD to make a deportation order was “in accordance with the law” for the purposes of

Article 8(2) of the ECHR

;

(3) an assessment of the competing factors, ie. the public interest on one side and the private interests of RU on the other, in order to assess the proportionality of the deportation decision, resulted in a “finely balanced assessment”; but

(4) overall the interests of society outweighed those of RU, so that the SSHD’s decision to make a deportation order against him was proportionate and so lawful.

[9]RU now appeals to this court, with the permission of Sedley LJ, on a point of law, pursuant to section 103B of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”). The point of law is, effectively, whether there was any error of law in the First Determination, and so whether it was wrong for it to be set aside.

The statutory framework

[10]The statutory framework for deportation of foreign nationals who have committed offences in the UK has changed as a result of the UK Borders Act 2007 (“UKBA”) coming into force. The relevant statutory provisions are now sections 3(5) and 5(1) of the Immigration Act 1971 (“the 1971 Act”), and sections 32 and 33 of the UKBA. I have set out the relevant parts of those provisions, together with relevant supplementary provisions in section 38(4) and the consequential amendments that were made to section 82(4) of the 2002 Act in the Appendix to this judgment.

[11]Broadly, the scheme of the legislation, as applied to the facts of this case, is as follows: first, a “foreign criminal” is a person who is not a British citizen, but who has been convicted in the UK of an offence and to whom one of two statutory “Conditions” applies. The first of these two Conditions, set out in section 32(2) of the UKBA, is that the person has been sentenced to a period of imprisonment of at least 12 months. Section 38(1) of the UKBA makes it clear that “period of imprisonment” does not include a suspended sentence, unless it becomes effective, nor to cases where the period of imprisonment is over 12 months only because the sentences are consecutive. But the phrase “period of imprisonment” does include detention in a YOI or hospital and where the order is for imprisonment or detention for an indefinite period that could be at least 12 months. There is no dispute that RU is, for the purposes of this appeal, a “foreign criminal”. We need not consider Condition 2, which is set out in section 32(3). Secondly, if a person is a “foreign criminal”, then section 32(4) of the UKBA declares that “for the purposes of section 3(5) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good”. Thus, whereas under section 3(5) of the 1971 Act, it is for the Secretary of State to decide whether he deems the deportation of the foreign national concerned to be conducive to the public good, now, in the case of a “foreign criminal” as defined by section 32(1)-(3) of the UKBA, Parliament has declared that this is the case. This state of affairs is recognised by the fact that a new Rule 364A of the Immigration Rules (HC 395) states that the revised Rule 364 This Rule is, effectively, the executive policy guidance for the SSHD when considering whether to deport under section 3(5) of the 1971 Act. Rule 364 has, of course, been considered in much case law. of the Immigration Rules “does not apply where the Secretary of State must make a deportation order in respect of a foreign criminal under section 32(5) [of the UKBA]”. In SSHD v MK,

[2010] UKUT 281 (IAC)

at [23]. Sedley LJ, sitting in the Upper Tribunal (Immigration and Asylum Chamber), described this change as “legislative policy” taking the place of “executive policy” on when to deport non-British nationals who had committed offences in the UK. This may have consequences for the approach of the court when there is a challenge (on the ground that removal would be a disproportionate interference with ECHR rights) to the SSHD’s decision to order deportation in the case of “foreign criminals”. I will have to consider that below. Thirdly, if a person is a “foreign criminal” so that his deportation is conducive to the public good, section 32(5) states the SSHD must make a deportation order, subject to the provisions of section 33 of UKBA.

[12]Fourthly, section 33 sets out a number of “Exceptions”, which, if applicable, have the consequence that sections 32(4) and (5) will not apply. The only relevant Exception in this case is the first part of Exception 1, which is where removal of the “foreign criminal” in pursuance of the deportation order would breach his rights under the European Convention of Human Rights (“ECHR”). Section 33(7) sets out the consequences of an Exception applying in a particular case. It stipulates that the application of an Exception does not prevent the SSHD from making a deportation order against a “foreign criminal”, nor will it result in it being assumed either that deportation of the “foreign criminal” concerned is, or is not, conducive to the public good. Fifthly, there is a further nuance in the case of two of the Exceptions, ie. numbers 1 and 4. The proviso to section 33(7) stipulates that in those cases, despite the application of those Exceptions, section 32(4) will continue to apply. This is relevant in the present case because RU relies on the first Exception, ie. his ECHR rights, as an answer to the SSHD’s obligation to deport under section 32(5). I will have to consider whether this new legislative framework has any effect on the approach of the court in such cases.

[13]Lastly, if a “foreign criminal” challenges a decision by the SSHD that section 32(5) applies to his case, then section 82(3A) of the 2002 Act stipulates that a decision by the SSHD that section 32(5) applies is an “immigration appeal” for the purposes of Part 5 of the 2002 Act.

The Reasons in the First Determination

(g) The Reasons in the First Determination

[14]The AIT said in its Reasons, at [33], that the appeal of RU was limited to a consideration of his Article 8 rights, in particular his claimed family and private life. It approached the question of whether the public interest (exemplified by section 32(4) of the UKBA) or the private interest of RU should prevail by reference to the well-known series of questions posed by Lord Bingham of Cornhill in R(Razgar) v SSHD.

[2004] 2 AC 368

at [17]. The AIT then reviewed the evidence and concluded, at [46], that RU “does not have a present family life in the United Kingdom with reference to Article 8”. However, the AIT went on to conclude, in [47], that RU had established “a very significant private life indeed in the United Kingdom…” which was “…very much inextricably linked and intertwined with his various relatives in the United Kingdom, the appellant presently being significantly dependent on those relatives”. The AIT also concluded, in [48]-[50], that RU had very limited links with Bangladesh. The AIT held, at [51], that the consequence of those conclusions was that it was “completely satisfied” that the decision of the SSHD to deport RU “…would have consequences of such gravity as to engage Article 8 with reference to the appellant’s private life established in the United Kingdom”. The AIT then proceeded “…to consider further issues relevant to proportionality”.

[15]Because [53] to [56] of the AIT’s reasons are central to the issues that arise on this appeal, I quote them in full:

“53. It is not in dispute that the respondent’s decision is in accordance with the law, with reference to the provisions of the 2007 Act. It is clear that the aim of the respondent’s decision is the maintenance of a sensible immigration control policy and, more particularly, the avoidance of crime and disorder and the protection of members of the public; a very weighty consideration indeed and one which we have taken fully into account. We would add that, during his submissions, Mr Hayes indicated that, whatever might be the appellant’s present propensity to re-offend, the seriousness of the appellant’s previous offence, coupled with the deterrent effect of his deportation upon prospective offenders, were factors which, in themselves Mr Hayes argued, justified deportation. We have taken these submissions fully into account. 54. Clearly, the offence committed by the appellant in the latter part of 1998 was a very serious offence indeed and it would appear that an initial charge of attempted murder was ultimately reduced to GBH with intent. The seriousness of the offence is reflected kin the sentence meted out to the appellant; namely, 15 years’ imprisonment. 55. We have also given very careful consideration to the prospective risk to past victims, and prospective future victims, at the hands of the appellant, it being clear that the appellant’s offending occurred in circumstances surrounding the breakdown of his previous marriage. The respondent has indicated concern that a similar scenario might occur at some stage in the future, at which point a future wife, or relatives of that wife, might similarly be at risk at the appellant’s hands. This is a factor which we have given full consideration to and to which we have referred below in terms of the likelihood of the appellant re-offending. 56. Additionally, we have taken into account the fact that, with reference to the terms of the 2007 Act, the appellant’s deportation is conducive to the public good, although we do not accept that his deportation would act in any meaningful way as a deterrent to others, as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation. Nevertheless, we bear in mind that the appellant’s offence, some 10 years ago, was an extremely serious one and one which, on its own, might well justify deportation.”

[16]The AIT then reviewed a number of facts and submissions of the parties. It noted, at [60], that RU had never been an habitual offender. It acknowledged that he had been cautioned for assaulting his ex-wife and that RU had admitted an earlier assault on her. There was also some indication of threats to one of RU’s former brothers-in-law. The AIT described the offence for which RU had been convicted and sentenced to 15 years as “very serious”, but said that the sentence imposed on him was “..due to end imminently with [RU’s] prospective release on parole”. That is, strictly speaking, not accurate. The sentence will not end until the expiry of the licence period, ie. after the full 15 years sentence has finished.

[17]The AIT also recited, at [62], a submission by Mr Hayes, who was the Presenting Officer on behalf of the SSHD. He had submitted that the fact that RU had lived in the UK for over 30 years did not indicate that his deportation could not be proportionate, especially bearing in mind the seriousness of RU’s offence. The AIT stated that it agreed with that submission. But it also said that every case required to be considered on its own particular facts, which is what it had done in the present instance.

[18]The AIT held, at [63] and [64], that the evidence indicated that there was a low risk of him re-offending. It concluded, at [65], that RU had “…clearly “paid for” his offence by serving a lengthy term of imprisonment”. At [66] of its reasons, the AIT summarised the effect of the most recent probation and parole board documents that were in evidence as showing that, whilst in prison, RU had made great efforts to engage with and address the causes of his offending behaviour and had attended many courses on that topic. It concluded that RU was genuinely remorseful for his offence.

[19]The Reasons then considered a number of matters that were dealt with in the letter of 20 January 2009 which set out the SSHD’s reasons for rejecting the Article 8 claim of RU and the SSHD’s decision to deport, notwithstanding that removal of RU would interfere with his Article 8 rights. It is unnecessary to go into those for the purposes of this appeal.

[20]The AIT then set out its reasons for concluding that the removal of RU would not be proportionate, so that his appeal must succeed. Again, it is better that I set those out in full:

“75. Clearly, for the appellant’s removal to be deemed proportionate, it would have to be established, the burden in that regard being upon the respondent, that the appellant’s expulsion from the United Kingdom was a necessary event (see paragraph 54 of the judgment in Grant), which refers to the earlier judgment in Uner v The Netherlands [2006] ECHR 873). Having taken into account the likelihood of the appellant’s re-offending, which is clearly significantly low, together with, in particular, the seriousness of the offence committed by him, and also having taken into account all of the other factors referred to by us above, we conclude that the appellant’s deportation is not necessary and is a disproportionate response by the respondent, bearing in mind the evidence which we have considered and which is now before us. 76. In reaching our above conclusion we have borne in mind the reasoning of the House of Lords in its judgment in Huang [2007] UKHL 11, and note that the Court, in that judgment, indicated that, in circumstances where an individual was unable to satisfy the requirements of a relevant Rule, Regulation or similar, it was envisaged that it would be in very few cases where the respondent’s decision relating to that individual would be deemed to involve a disproportionate interference with that individual’s rights under Article 8(2). We appreciate that this is not a strict legal test and we reiterate that we conclude that the evidence before us in the present case causes us to be satisfied that the relevant balancing exercise should weigh in the appellant’s favour. Based upon the evidence before us, and the facts as found by us, we conclude that the respondent’s decision involves a disproportionate interference with the appellant’s rights under Article 8(2). Thus, the appellant’s Article 8 appeal succeeds.”

[21]As already noted, Senior Judges Storey and Mather concluded that the AIT had erred in law by expressing itself as it had in [56] of its Reasons. Having quoted that paragraph,

Judge Storey’s reasons for ordering a second stage reconsideration continue, at [6]:

“6. It seems to us that this paragraph betrays an erroneous grasp of the concept of public good and the public interest. The guidance given by the Court of Appeal in cases such as OH (Serbia) and DS(India) [2009] EWCA Civ 544 is binding on AIJ judges. A main plank of that guidance is that AIT judges must have regard to the significance of deportation as a deterrent. As stated by Rix LJ at para 37 of DS (India): “The public interest in deportation of those who commit serious crime does well beyond depriving the offender in question from the chance to re-offend in this country; it extends to deterring and prevent serious crime generally and to upholding public abhorrence of such offending.”

The notion of deterrence is this context is not one that depends on examining whether deportation of the individual who is the subject of a decision to deport would be a deterrent, but on the policy of deportation as a deterrent.” “The public interest in deportation of those who commit serious crime does well beyond depriving the offender in question from the chance to re-offend in this country; it extends to deterring and prevent serious crime generally and to upholding public abhorrence of such offending.”

[22]Judge Storey’s reasons then considered and dismissed submissions of Mr Chirico as to why any error of law (which he disputed) was immaterial in any event.

Judge Storey’s reasons continued, at [8]:

“8. We consider that, given the centrality to the appeal of the balancing exercise to be conducted under Article 8, the error of the panel in para 56 had a real possibility of affecting the outcome of the appeal. ”

The Second stage Determination Reasons

[23]The present appeal concerns whether the First Determination erred in law, not whether the FtT decision was correct in law or in its conclusions. However, it is useful to note how it characterised the issues it had to decide. Effectively it held, at [12], that once it was determined that RU was a “foreign criminal” so that the SSHD must deport him unless one of the Exceptions in section 33 applied, it was for RU to establish that an Exception applied. In this case, the Exception relied on was that the removal pursuant to a deportation order would interfere with RU’s ECHR rights. If that was proved, then it was for the SSHD to demonstrate that the interference was justified. At [13] of its Reasons, the FtT posed the Razgar questions.

[24]Having reviewed the evidence, the FtT determined, at [53], that RU had established a very significant private life in the UK. It held, at [54], that the decision to deport did interfere with RU’s right to respect of that private life. After a further analysis of the evidence, the FtT then summarised what it regarded as the relevant factors to be considered in the balancing exercise. These were:(a) the serious nature of the offence, which involved the use of violence to resolve a domestic dispute; something which the FtT said should be discouraged in society.

(b) The length of time that RU had lived in the UK, ie. 34 years and his well established private life in the UK.

(c) The fact that the offence was committed 11 years before and there had been no offending since he had left prison and found employment.

(d) RU is a Bangladeshi national who could speak and write Bangladeshi, who accepted he was not estranged from the Bangladeshi culture.

(e) Although the interests of RU’s former wife and his daughter were not material considerations, the close support of his brothers and their families in the UK were important to him.

(f) Any awareness of the offence by his family were irrelevant.

(g) His daughter’s circumstances had no bearing on the assessment of proportionality.

(h) If RU returned to Bangladesh he could maintain contact with his relatives and his workplace experience and skills were transferable.

(i) There was no evidence of specific social ties in the UK outside those of his family.

[25]The FtT concluded, at [66] that this was a “finely balanced assessment”. It reiterated the importance of RU’s long established private life in the UK. Paragraph [66] continued:

“…. Having taken all the circumstances into account we find that the nature of the offence committed by the Appellant: the use of a firearm and recourse to violence to resolve a domestic dispute in part in order to make a point to a community are weighty considerations. In our view the public policy of deterrence and expression of disapproval is reinforced by the deportation of those who behave in such a way. We find that the interests of society outweigh those of the Appellant notwithstanding the progress he has made to address his offending behaviour. In our view the Decision is proportionate.”

The arguments on appeal

[26]Sedley LJ gave permission to RU to argue two grounds of appeal. The first is whether the First Determination adequately and lawfully considered and determined RU’s appeal from the SSHD’s decision to deport. The second is whether a general “policy of deterrence” could be relied on as a factor capable, without more, of justifying deportation, as the Court has consistently held since R (Samaroo) v SSHD [2002] INLR 55;

[2001] EWCA Civ 1139

at [36] and [40] per Dyson LJ, with whom Thorpe LJ and Dame Elizabeth Butler-Sloss P agreed. and N(Kenya) v SSHD; [2004] INLR 612;

[2004] EWCA Civ 1094

at [54], where May LJ quoted, without comment, from Dyson LJ’s judgment at [36] and [83], per Judge LJ. Sedley LJ gave a dissenting judgment. or whether this approach should be reconsidered in the light of recent Strasbourg and domestic jurisprudence. Sedley LJ refused permission on two other grounds which therefore are irrelevant. Before the hearing of the appeal, Mr Chirico had informed the court that his argument would be confined to the first of those two grounds.

[27]Mr Chirico submitted:(1) the UKBA provisions in sections 32 and 33 had no effect on the exercise that had to be carried out by the Secretary of State if a “foreign criminal” who was subject to the automatic deportation provisions established that his removal would infringe his Article 8(1) rights.

(2) The Secretary of State had to balance the interference with the potential deportee’s Article 8(1) rights with the public interest, particularly those identified in Article 8(2) which meant, in the case of “foreign criminals”, in particular, “the prevention of disorder or crime”, and the “protection of the rights and freedoms of others”.

(3) The First Determination, taken as a whole, did not contain any error of law. It effectively refers to the three most important “public interest” factors to be considered in deportation cases involving “foreign criminals” which had been considered in N(Kenya), and summarised by Wilson LJ in OH(Serbia) v SSHD. [2009] INLR 109 at [15];

[2008] EWCA Civ 694

. Wilson LJ identified these as: (a) the risk of re-offending, (b) the need for possible deportation to be seen as a means of deterrence, and (c) the role of using deportation orders as an expression of the public’s revulsion at serious crimes and the need to build public confidence in the treatment of foreign citizens who have committed serious crimes.

(4) Paragraph 56 of the First Determination did not dismiss the important public interest factor of deterrence. It accepted that RU’s deportation was conducive to the public good, which therefore meant that the AIT must have accepted the importance of deterrence as a principle.

(5) The AIT was entitled to comment that in this particular case the deportation of RU would not act in any meaningful way as a deterrent to others, “…as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation”.

(6) Even if paragraph 56 of the First Determination contains an error of law in itself, taken overall the reasons are satisfactory and did not render the AIT’s decision unlawful.

[28]Miss Lisa Giovannetti QC, for the SSHD, submitted:(1) the effect of the UKBA is that it puts into legislative form the public interest that the deportation of “foreign criminals” is conducive to the public good. It was accepted that, in general terms, the First Determination had recognised that the UKBA now embodied the primary policy considerations which had to apply in the case of a deportation order made against “foreign criminals”.

(2) However, paragraph 56 of the First Determination demonstrated that the AIT totally discounted the importance of the public policy consideration of “deterrence” in this case.

(3) The consequence was that the overall consideration by the AIT of whether the SSHD’s decision was proportionate was flawed as a matter of law.

(4) Accordingly, it was right to set it aside. Furthermore, the FtT’s decision is correct.

The Issues

[29]It seems to me that it is not possible to answer the question of whether there was any error of law in the First Determination without first considering the question of the effect of the legislative changes brought about by sections 32 and 33 of the UKBA. Once that has been analysed it will then be necessary to re-examine the way that the AIT approached its task in the light of those provisions, in order to decide whether AIT committed any error of law and to decide whether any error of law was material on the facts of this case.

The changes brought about by sections 32 and 33 of the UKBA

[30]Before the UKBA was passed, the SSHD could make a deportation order under section 5(1) of the Immigration Act 1971 against a foreign national who had been convicted of criminal offences in the UK, on the grounds that the SSHD deemed the person’s deportation to be conducive to the public good under section 3(5)(a) of the 1971 Act. When the SSHD made such a deportation order, he had to have regard to the policy considerations set out in paragraph 364 of the Immigration Rules HC 395, which embodied “executive policy” in relation to such deportation orders. As already noted, paragraph 364A of the current Immigration Rules stipulates that paragraph 364 does not apply to deportation orders made under section 32(5) of the UKBA. Paragraph 364 stipulates that the SSHD must take account of all relevant factors including eight that are specifically identified. The SSHD also had to take account of paragraph 380 of the Immigration Rules which provides that a deportation order will not be made against any person if his removal in pursuance of the order would be contrary to the UK’s obligations under the Refugee Convention or the ECHR.

[31]If the SSHD made a deportation order against a non-British citizen who had been convicted of a criminal offence in the UK, a challenge to the order was commonly put on two bases. First, it could be argued that the SSHD was wrong to “deem” that person’s deportation was conducive to the public good. Secondly, even if the deportation was conducive to the public good, it could be argued that the removal of the person would infringe his rights under the ECHR (often his right to family or private life under Article 8(1)) and the deportation would be disproportionate to the infringement of his ECHR rights which would result from his removal from the UK. In raising this latter ground, the challenger first had to demonstrate infringement of Article 8(1). If that was established, the court or tribunal would have to conduct the Razgar balancing exercise on “proportionality” in which the tribunal or court would have to balance the private interests of the individual against the public interests of the state, which Judge LJ (as he then was) summarised in N(Kenya) [2004]INLR 612 at [83] as being “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”.

[32]Cases decided by this court under the pre-2007 Act regime, including, in particular, Samaroo, [2002] INLR 55 N(Kenya), [2004] INLR 612 and OH(Serbia) [2009] INLR 109 identified particular public policy or public interest considerations that had to be taken into account at two stages. First, they were factors that the SSHD was entitled to take into account when deciding whether or not to make a deportation order. Secondly, they were factors going to the public interest, to which appropriate weight had to be given by a tribunal or court when considering the balance between public interest and the private interest of a potential deportee if he demonstrated that his removal pursuant to a deportation order would infringe his Article 8(1) rights, so that the “proportionality” balance had to be struck in accordance with

Article 8(2) of the ECHR

[33]In OH(Serbia), [2009] INLR 109 at [15]. Wilson LJ summarised three important “facets” of the public interest that had to be considered in deportation cases involving non-British citizens who had been convicted of offences in the UK and where the SSHD had concluded that deportation of the person concerned was conducive to the public good. The “facets” he identified were:(a) the risk of re-offending by the person concerned;

(b) the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation; and

(c) the role of deportation 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. Wilson LJ also emphasised that the primary responsibility for the public interest was that of the SSHD, who would be likely to have a broader and better informed view of that interest than would a tribunal.

[34]The effect of sections 32(1)-(3) of the UKBA must be that if a person meets the conditions which bring him within the definition “foreign criminal”, then his deportation is deemed by statute to be conducive to the public good. I therefore agree with Sedley LJ’s statement (when sitting in the Upper Tribunal) in SSHD v MK

[2010] UKUT 281

at 23 that what was in the field of “executive policy” (because it was for the SSHD to decide whether it was conducive to the public good to deport a foreign criminal) has now become “legislative policy”. Parliament has stated that it is conducive to the public good to deport “foreign criminals”. I also agree with Sedley LJ’s statement, at [24] in the same Determination, that where a “foreign criminal” challenges a deportation order made by the SSHD under section 32(5) of the UKBA, on the basis that his removal would infringe his ECHR rights and it would be disproportionate to deport him, it is not open to that person to argue that his deportation is not conducive to the public good, nor is it necessary for the SSHD to prove that it is. In such cases it will be so: see the proviso to section 33(7) of the UKBA.

[35]I further agree with Sedley LJ’s statement, at [25] to [27] in the same Determination, that in a case where the SSHD has made a deportation order against a “foreign criminal” which is challenged on the ground that removal would infringe the potential deportee’s ECHR rights under Article 8(1) and would be disproportionate under Article 8(2), a tribunal must move directly to consider whether(i) the person’s ECHR rights would be infringed if removed and

(ii) if so, whether the removal would be disproportionate. If the “proportionality” exercise has to be carried out under Article 8(2) because it is concluded that removal of the deportee would infringe his Article 8(1) rights, then both the SSHD, as the original decision maker, or any tribunal reviewing that decision, must take into account the public interest embodied in the terms of the proviso to section 33(7) of the UKBA: viz. that deportation of a “foreign criminal” is conducive to the public good, even if he can demonstrate removal would infringe his

Article 8 ECHR

rights.

[36]Because, by statute, the deportation of “foreign criminals” is deemed to be conducive to the public good, I think the constituents of that “public good” must continue to include those particular facets of “the public interest” summarised by Wilson LJ in OH(Serbia) and set out at [33] above. Therefore, if a “foreign criminal” asserts that removal by a deportation order pursuant to section 32(5) of the UKBA would be a disproportionate interference with his Article 8(1) rights, both the SSHD and any reviewing tribunal must be obliged to take those public interest factors into account when performing the “proportionality” balancing exercise.

[37]But that still leaves open two questions: first, what weight is generally to be attached to those public interest factors in the proportionality exercise; is it the same or more than was accorded under the pre-UKBA regime? Secondly, should any separate or additional weight be given to the SSHD’s own judgment on the weight of those factors in a particular case, as expressed in his Decision Letter. Both questions were raised, but not answered, by Sedley LJ, sitting in the Upper Tribunal, in his judgment in SSHD v BK.

[2010] UKUT 328

at [24]. The questions were also raised by this court in its recent decision in AP(Trindad and Tobago) v SSHD.

[2011] EWCA Civ 551

at [6] per Longmore LJ; [41]-[44] per Carnwath LJ and [49] per Rimer LJ. In that case counsel for the SSHD had not argued that the effect of the 2007 Act was that greater weight had to be given to the public interest factors in cases where a “foreign criminal” resisted a deportation order on grounds that removal would infringe his Article 8 rights under the ECHR. Nor did counsel for the appellant (Mr Chirico) argue that the public interest factors in favour of deportation summarised in OH(Serbia) were now less important in such cases.

[38]At [44] of his judgment in AP (Trinidad and Tobago) Carnwath LJ said: “…Although the executive’s policy as such has been superseded, it is readily inferred that the policy factors identified in OH(Serbia) were impliedly endorsed and if anything reinforced, by Parliament’s intervention. Indeed, as I have said, 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. Although [counsel for the SSHD] did not so argue, it seems a little surprising (if she is right) that this apparently definitive statement by Parliament has made no difference in practice, at least where any form of private or family life is involved”.

[39]Before us Miss Giovannetti QC, for the SSHD, and Mr Chirico, for RU, took the same stance as had counsel in AP (Trinidad and Tobago). Although, in my view, it is not necessary to resolve the questions on this appeal I respectfully agree with the view expressed by Carnwath LJ as set out above. But these questions will be open for argument if relevant in future cases.

[40]At all events on an appeal from the SSHD’s decision that section 32(5) applies in a case where the “foreign criminal” has argued that removal pursuant an automatic deportation order would infringe his Article 8(1) rights and be disproportionate, the tribunal or court concerned must recognise and give due weight to all the public policy factors identified in OH(Serbia). It must acknowledge that the SSHD is entitled, indeed obliged, to give due weight to them. The tribunal or court must also acknowledge and give due weight to them when drawing the “proportionality balance” under Article 8(2).

Did the First Determination Err in law and if so, was the error material?

[41]I have concluded that the AIT’s First Determination clearly erred in law in expressing itself as it did at paragraph [56]. I accept that in [53] of the First Determination it set out the aim of the SSHD’s decision as being the maintenance of a sensible immigration control policy, the avoidance of crime and disorder and the protection of members of the public. I further accept that, in the same paragraph, the AIT also stated that those were very weighty considerations indeed which it had taken fully into account. That paragraph also records that the AIT had taken fully into account the submissions of the Presenting Officer that even if there was a low risk of RU re-offending, “the seriousness of the appellant’s previous offence, coupled with the deterrent effect of his deportation upon prospective offenders were factors which, in themselves…justified deportation”.

[42]I also appreciate that the AIT also stated, in the first part of the first sentence of [56] that it had taken into account the fact that, with reference to the UKBA, RU’s deportation was conducive to the public good. The error of law occurs in the next part of the same sentence, which states “…although we do not accept that his deportation would act in any meaningful way as a deterrent to others, as the appellant is an individual and there is no reason why any other prospective offender would have any knowledge whatsoever of his deportation”.

[43]The point about “deterrence” is not whether the deportation of a particular “foreign criminal” may or may not have a deterrent effect on other prospective offenders. It concerns a much more fundamental concept which is explained by Judge LJ at [83] of his judgment in N(Kenya). The UK operates an immigration system by which control is exercised over non-British citizens who enter and remain in the UK. The operation of that system must take account of broad issues of social cohesion in the UK. Moreover, the public has to have confidence in its operation. Those requirements are for the “public good” or are in the “public interest”. For both of those to requirements to be fulfilled, the operation of the system must contain an element of deterrence to non-British citizens who are either already in the UK (even if refugees) or who are thinking of coming to the UK, “so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation”. That element of “public interest” or “public good” is a part of the legislative policy, declared by Parliament in section 32(4) of the UKBA, that the deportation of “foreign criminals” is conducive to the public good.

[44]Thus, I respectfully agree with Judge Storey’s statement at [6] of the Reasons of the first-stage reconsideration that [56] of the First Determination did betray “an erroneous grasp of the public good and the public interest”. It must follow that unless it is clear that this erroneous grasp was clearly corrected at some other point in the First Determination, it suffered from a serious error of law. In my view, despite the attractive arguments of Mr Chirico, there is nothing in the remainder of the First Determination to demonstrate that this erroneous grasp had been corrected.

[45]It must follow that if the AIT followed the direction in law that it had given itself in [56] when it came to drawing the balance of proportionality under Article 8(2), it could not have given appropriate weight to that facet of the “public interest” when it carried out that exercise. Accordingly, the error of law must have been material and makes the First Determination unlawful.

Conclusion and Disposal

[46]My conclusion, therefore, is that the First Determination did err in law. This appeal must be dismissed.

[47]I agree.

[48]I also agree.