SU (Bangladesh) v Secretary of State for the Home Department [2013] EWCA Civ 427

Case No C5/2012/2589

[2013] EWCA Civ 427

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION & ASYLUM CHAMBER)

[AIT Number: IA/15400/2011]

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

Date Thursday, 7 th March 2013

Before

LORD JUSTICE MOORE-BICK

LORD JUSTICE AIKENS

LORD JUSTICE SULLIVAN

Between

SU (Bangladesh)Respondent

SECRETARY OF STATE FOR THEAppellant

HOME DEPARTMENTAppellant

(DAR Transcript of

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Mr Paul Greatorex (instructed by Treasury Solicitors) appeared for Appellant.

Mr Chris Jacobs (instructed by Messrs A Seelhoff) appeared for Respondent.

Judgment

[1]This is the Secretary of State’s appeal against the determination dated 11 May 2012 of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge John Freeland and Mr Jeffrey James KBE CAB) allowing Mr U’s appeal against the Secretary of State’s decision contained in a decision letter dated 21 April 2011 to refuse to revoke a deportation order which had been made in respect of Mr U for 9 March 2007. For convenience, in this judgment I will continue to call Mr U the appellant, as he was in the proceedings before the First-tier Tribunal and the Upper Tribunal. The First-tier Tribunal had allowed the appellant’s appeal against deportation on Article 8 grounds in a determination promulgated on 27 September 2011. The Upper Tribunal concluded that the First-tier Tribunal had erred in law, so it remade the decision. At the hearing before the Upper Tribunal, the parties were agreed that the only issue was the proportionality of the deportation decision, in terms of the appellant’s Article 8 rights.

The Facts

[2]In 2005 the appellant, who was born on 9 August 1981, was convicted of kidnapping with two other men, and indecently assaulting a 25 year-old woman. The offences took place on 21 March 2004. The appellant was sentenced to 45 months’ imprisonment, and placed on the sex offender’s register. An appeal against the conviction and sentence was dismissed. The appellant’s sentence expired, and he was released on immigration bail in April 2007. In March 2007 he had been served with a notice of decision to deport, against which he appealed. His appeal was dismissed in August 2007, and a deportation order was signed on 7 November 2007. The appellant has not been convicted of any further offence since the offences in March 2004.

The Upper Tribunal’s Determination

[3]The Tribunal set out a chronology in paragraph 12 of its determination. Between March 2004 and the date of the hearing of the Upper Tribunal in May 2012, the appellant had been at liberty for a substantial proportion of the eight years, although it should be noted that there were significant periods when he was either in custody and/or in immigration detention. Between 2007 and 2012, there were significant period during which the appellant was regularly detained and then released on bail. In paragraph 14 of its determination, the Tribunal said:

“This was not, as can be seen from the chronology, one of the all-too-familiar cases where the Home Office, following an appellant’s conviction for a serious offence, waited for years before taking any action. With the exception of the five months which passed from the expiry of the appellant’s right of appeal against refusal of judicial review in January 2008, till he was detained in June, they had been guilty, for once, of no substantial delay at all in this case; so there is no point to be made on that for the appellant. However, it has to be said that he stayed out of trouble for what, at his age and his history, has to be considered a very significant period. (He had one previous conviction, for robbery, in 1997, when he was 16: for this he was sentenced to 18 months’ detention.”

In paragraph 2 the Tribunal had said that following the making of the deportation order, the Home Office “went on doing their best” to remove the appellant.

[4]The Tribunal noted that the appellant had been assessed as posing a medium risk to the public. In paragraph 19 it said:

“There is no evidence at all to show that the appellant has accepted responsibility for his crime, which is no doubt one reason why he is still assessed as a medium risk to the public.”

The tribunal dealt with the appellant’s mental health, he was diagnosed in 2011 as a paranoid schizophrenic, and with the appellant’s relationship with his family. It summarised the position in paragraph 21 of its determination:

“In plain English, the appellant may get better, if left with his family; if not, then he may get worse.”

[5]In considering the public interest, the Upper Tribunal referred to its own then recent decision in Masih (Deportation – Public Interest – Basic Principles) (Pakistan)

[2012] UKUT 46

(Immigration Appeal Chamber), and also to the decision of the European Court of Human Rights in AA v United Kingdom, now reported in [2012] Immigration Appeal Reports at page 1. The Tribunal noted at paragraph 63 of the court’s judgment in AA, in which the court said:

“... the fact that a significant period of good conduct has elapsed following the commission of the offence necessarily has an impact on the assessment of the risk which the appellant poses to society ...”

The Tribunal said that the appellant fell within principle F in paragraph 11 of C. He had arrived in the United Kingdom with his mother in 1986 when he was five years old and had had indefinite leave to remain since then. So “very serious reasons” were required to justify his expulsion from the United Kingdom. However, the Upper Tribunal said that it entirely agreed with the First-tier Tribunal’s view that the appellant’s crime in 2004 had “involved very serious violent offences”; see paragraph 30 of the determination.

[6]Against this background the Upper Tribunal set out its conclusions in paragraphs 33 to 43 of its determination. Its first conclusion in paragraph 43 was:

“We have no doubt that what the appellant did to [S] in 2004 richly deserved his being reported in 2007 as soon as he has served his sentence for it, and we should not ourselves have given him immigration bail in April that year. There was nothing wrong with the Immigration Judge’s decision to dismiss his appeal that August, as was settled by the refusal of reconsideration in September. The judicial review proceedings which followed ended without further right of appeal in January 2008 when we should expect the Home Office to have taken immediate steps to remove the appellant. Instead, they waited to that view. When a series of repeated detentions and releases on bail began, and went on to the appellant’s last release in February of 2011.”

Pausing there, there was indeed a series of repeated detentions and releases on bail, but it will be recalled that the Upper Tribunal had already concluded that the Home Office had been doing its best with the appellant, and had not been guilty of any substantial delay in this case; see paragraphs 2 and 14 of the determination, to which I have referred above. In paragraphs 34 and 35 the Tribunal said:

“We are strongly tempted to say that we should now deal with the appellant without taking into account whatever machinations may have led to this case taking as long as it has to come to an end. His regret for his crime extends no further than self-pity for the consequences to him, and we see no realistic prospect of his changing his attitude, so long as he remains in the bosom of a family who share it. We do not think that attitude belongs in present-day Britain, as we and most right-thinking citizens would like it to be. 35. However, we act in the situation as we find it. Whatever the limitations of the appellant’s attitude to what he did, he has not done it, or anything like it, in the last eight years. While for most of that time he has been at large, but under imminent threat of deportation, that process has clearly had its effect on him. If he has not learnt the errors of his ways in principle, he has certainly had very clearly impressed on him what problems they may cause in his own life. He is now 30, over the last eight years he has been out of any kind of trouble.”

In paragraph 37 the Tribunal said that it did not doubt that the appellant’s family would miss him very much, particularly for the help he gave to his younger brother, but it added:

“they must themselves bear some responsibility for his having gone so wrong at such an early age, and they show no signs of acknowledging that. Once more, if we were dealing with this case without the grant of the passage of time without further convictions, then we should regard society’s interests in removing this appellant as outweighing his family’s in keeping him here.”

The Tribunal continued in paragraphs 38 to 42:

“However, we do not think this appellant, following the experiences he has had as a result of his crime, presents any likely danger to society for now or the foreseeable future. His personal attitude may be unchanged, but his behaviour has been different from what it was at the date of his crime. As judges used to say, we are not a court of morals: more explicitly, we are not concerned with inner virtue, but with outward behaviour. 39. There are certainly cases, at least with appellants from outside the EEA, where someone has to be deported, regardless of present risk, behaviour or family ties, simply to express society’s disgust at his loathsome actions. While this appellant’s crime certainly fell into the category of very serious violent offences, we do not think that, committed as it was by a young man only 22 at the time, it reached that exceptional level. 40. Given this appellant’s eight years out of trouble, even bearing in mind how much of that time he has spent in custody, or under imminent threat of deportation, we think the reformation of his behaviour, if not of his attitude, now outweighs society’s interest in removing him. Inevitably in a case of this kind, where family ties in this country are maintained, and no further offences are committed, it becomes harder and harder to remove someone. Ideally cases like this should be dealt with, once and for all, when the custodial period of the appellant’s sentence still has a short time to run: then he can be dealt with in the light of any reports on whatever good it may have done him, but without the dead hand of the developing status quo release. 41. If the decisions cannot be taken, and appeals brought by that time, then judges should think very hard before releasing on bail an appellant who prima facie ought not to be in this country at all. The factor which militates against their doing so is not so much the risk of an appellant absconding within the country, let alone outside it; but of his not co-operating with any lawful efforts to remove him from it. We do not know why this appellant was detained and released as many times as he was: he has been represented throughout by very competent lawyers, which may have had something to do with it. 42. We do not see any immediate prospect of this appellant becoming useful to society generally, though we think he will at least be harmless. However, he is useful to his family, and looking after his brother and taking the children to school are in the public interest, so far as they go. We do think he stands a better chance of becoming a useful member of society in the end if he stays with his family, though we are not optimistic about his prospects for real reformation, so long as he, and they, refuse to acknowledge the evil he has done.”

Submissions

[7]In a nutshell, Mr Greatorex on behalf of the Secretary of State submits that on the facts of this case, where the Upper Tribunal had concluded the deportation in 2007 would have been “richly deserved”, there was no relevant change in circumstances between 2007 and 2012 which could rationally have led to the conclusion that that which would have been richly deserved in 2007 would be disproportionate in 2012. So far as the delay was concerned, the Upper Tribunal had concluded that the Home Office was doing its best to remove the appellant, and is not guilty of any substantial delay. However, notwithstanding that conclusion, the Tribunal had said in paragraph 41 of its determination:

“We do not know why this appellant was detained and released as many times as he was: he has been represented throughout by very competent lawyers, which may have had something to do with it.”

Mr Greatorex submits that the tribunal either did, or certainly should have, known the reasons for the repeated detentions and releases on bail, because there had been a full explanation in the decision letter refusing to revoke the deportation order. That set out in paragraph 7 an extensive immigration history.

[8]Following the signing of the deportation order against the appellant in November 2007, he had been detained pending removal, but that was cancelled, and he was granted bail, because he had made an application to the Criminal Cases Review Commission. Ultimately, that was rejected in February 2010. In August 2010, he was again detained pending removal, but that move was cancelled because an application for judicial review was made and bail was granted. The application for judicial review was refused. There then followed a series of attempts to remove the appellant which were frustrated by the appellant, because he either swallowed razor blades or said he had swallowed razor blades. In addition to the appellant’s own attempts to frustrate his removal, there were further applications for judicial review, all of which until the letter of 21 April 2011 were refused. Following that, we are told, permission to apply for judicial review was granted in respect of one application. Nevertheless, the picture is between November 2007 and April 2011, the date when the Secretary of State refused to revoke the relevant deportation order, is one of repeated unsuccessful applications for judicial review. Mr Greatorex acknowledges that the appellant had spent eight years out of trouble, but he points out that during the whole of that time he was subject to the threat of deportation. Moreover, the appellant had been assessed as being a medium risk to the public, and there was no evidence to show that he had accepted responsibility for his actions, and the tribunal had concluded that there was no realistic prospect of the appellant changing his attitude, so long as he remained in the bosom of his family, who shared his attitude, an attitude that the Tribunal says did not belong to present-day Britain. Hence the fact that the Tribunal had said in terms that it was not optimistic about the prospects of real reformation.

[9]Mr Greatorex submitted that the Tribunal gave no reasons for its apparent change of mind in paragraph 38 of the determination, in which having apparently accepted that the appellant had been assessed as being a medium risk to the public, the Tribunal concluded in paragraph 38 that it did not consider that he presented “any likely danger to society for now or the foreseeable future”. He acknowledged that the Tribunal was, of course, entitled to form its own view of risk, but he submitted that if the tribunal was going to disagree with the assessments that had been carried out, then it at least had to explain why. It followed that if there was no proper basis for the tribunal’s conclusion in paragraph 38 that the appellant did not present any likely danger to society for now or the foreseeable future, that the Tribunal proceeded in paragraph 39 on a false premise, because it considered in that paragraph those cases where, regardless of risk, someone has committed a particularly loathsome crime, simply on the basis of the characteristics of the crime, rather than any assessment of the risk that they presently pose, has to be removed from this country. Without acknowledging that the Tribunal had applied the right test, he submitted that the Tribunal had erred in looking for an exceptional level of offending that was yet more serious than the very serious violent offences which the Tribunal accepted that this appellant had committed. Finally, Mr Greatorex observed, this was an Article 8 case, and there had been no suggestion that the appellant’s family circumstances had materially changed since 2007, when deportation would have been richly deserved. This was not a case, for example, where over the intervening years the appellant had married and established a family life. In summary, he submitted, the only thing that had occurred was that the appellant had not offended again after 2007. And while that was not irrelevant, it could not rationally have made the appellant’s deportation disproportionate in 2012.

[10]On behalf of the appellant, Mr Jacobs submitted that the Upper Tribunal had correctly applied Masih and KA and had not erred in law. He accepted that the Tribunal had been entitled to conclude that deportation had been richly deserved in 2007. However, he submitted that by 2012 there had been a significant period of good conduct since the offences in 2004, and the Tribunal was entitled to take that matter into account as a relevant factor. He submitted that the Tribunal had not simply had regard to the lapse of time, apart from the fact that no offence had been committed during the intervening years. The appellant had been registered as his brother’s carer in 2010, and of greater importance, the appellant had been diagnosed in 2011 as a paranoid schizophrenic. Mr Jacobs submitted that thereafter it had become clear that the appellant’s attitude to his crime, and his refusal to acknowledge his responsibility for it, was the result of his mental illness. Hence it was, submitted Mr Jacobs, that the Tribunal had been careful to separate out the appellant’s attitude to his crime from his behaviour.

Conclusions

[11]I accept the submission made on behalf of the Secretary of State that of course the Tribunal had to deal with the situation as it found it to be in 2012, but in my judgment one searches in vain for a rational explanation as to why deportation that would have been “richly deserved” in 2007 had become disproportionate in 2012. When considering the intervening period of time, the Tribunal in my judgment erred in five respects. Its reasoning was highly internally inconsistent, or it had regard to irrelevant matters, or failed to have regard to relevant ones, in the following respects. Firstly, the fact that the delay was not the fault of the Home Office, which had been doing its best to remove the appellant, was plainly a relevant factor. The reasons for the many occasions between 2008 and 2011, when the appellant had been detained and then released on bail, were set out during the decision letter dated 21 April 2011, and there had been no challenge to them. Those delays were caused by the appellant’s own disruptive conduct, and by his many applications for permission to apply for judicial review, and to apply to the Criminal Cases Review Commission, all of which were unsuccessful prior to April 2011, but which of course had the effect of delaying his removal. This was a relevant factor which the Upper Tribunal should have taken into consideration when carrying out the balancing exercise, and considering what weight it should give to the issue of delay. Far from taking this factor into account, the Tribunal in its conclusions in paragraph 41 appeared to resile from its view that the Home Office had not been involved and said that it did now know why the appellant had been detained and released as many times as he had been. It merely said that he had been represented by very competent lawyers, which may have had something to do with it. The very fact of the matter was there had been a number of unsuccessful applications for judicial review, which had the practical effect of delaying removal.

[12]Secondly, the fact that a significant period of conduct has elapsed is of course capable of being a relevant factor. Although Mr Jacobs placed particular emphasis on the decision in AA, and said that the Tribunal had been entitled to apply it, it is important to bear in mind that a significant period of good conduct is not relevant in the abstract. It is relevant in particular because it is likely to have, as the European Court of Human Rights pointed out in AA, and in fact on the assessment of risk, when deciding what weight to give to this factor, and it is therefore important to consider all of the relevant circumstances. They include of course the fact that was noted by the Tribunal at paragraph 35 of its determination that an individual’s conduct whilst he is under the imminent threat of deportation may be somewhat different than his conduct might be once that threat has been removed. Of course, a significant period of good conduct may indicate that an offender has changed his attitude and reformed, so that the risk to the public has been removed or substantially reduced. But that was not the position on the Tribunal’s findings in the present case. The appellant had not changed his attitude, and the Tribunal expressly concluded that there was no realistic prospect of him changing his attitude or of “real reform” for so long as he remained with his family, and of course the purpose of the Article 8 appeal was to enable him to remain with his family.

[13]Mr Jacobs submitted that the Tribunal in 2012 would have known, as the result of the diagnosis of paranoid schizophrenia, that the underlying reason for the fact that the appellant had not changed his attitude was his mental condition. There are a number of difficulties about that submission. First of all, it does not appear to play, or at least any significant part, in the Tribunal’s own reasoning. Secondly, the implications are that even if the diagnosis took place in 2011, the condition was a longstanding one. And thirdly, and in the event, the Tribunals was concerned with present risk, and for whatever reason the risk that exited in 2007 had not diminished by 2012 because the appellant’s attitude had not altered. Thirdly, given that the Upper Tribunal had recognised that one of the reasons why the appellant was still assessed as a medium risk to the public was the fact that he had not accepted responsibility for his crimes; see paragraph 19 of the determination. It is significant to understand the basis of the Tribunal’s apparently contradictory conclusion at paragraph 28 that the appellant did not present “any likely danger to society for now or the foreseeable future”. Mr Jacobs submitted that the Tribunal was entitled to form its own view of present risk; that of course is correct. The Tribunal was entitled to form its own view, but if it was to differ from the assessments, it at the very least had to explain why, and explain there is none. This inconsistency in the findings of risk is of significance, because the Tribunal’s unfounded assessment of lack of risk in paragraph 38 of its determination appears to be the basis on which it concluded in paragraph 39 that although the appellant’s crimes were “very serious and violent offences”, they did not reach the exceptional level which would justify deportation regardless of risk. I express no view as to the correctness of the test posed in paragraph 39, but on the basis that the Tribunal had accepted at least at one stage of its determination that this appellant still posed a medium risk to the public, the exceptionality threshold which it posed itself in paragraph 39 was simply irrelevant. Fourthly, as the parties had agreed at the outset of the hearing before the Tribunal, this was an Article 8 case. There is, however, no suggestion in the determination that there had been any material change in the appellant’s family life since 2007. This is not a case where, for example, the appellant had developed a new relationship. Mr Jacobs referred to the fact that the appellant had been registered as his brother’s carer. The Tribunal noted that, but it was not seen that the Tribunal regarded that change as being of any particular significance. It will be recalled in paragraph 37 of its determination, the Tribunal noted that the appellant’s family would miss him very much, particularly for the help that he gives his younger brother, but it went on to say that the family must themselves bear some responsibility for the appellant’s having gone so wrong at such an early stage, and added that they showed no signs of acknowledging that. And of course noting in the Tribunal’s conclusion that so long as the appellant remained within the vicinity of his family, there was no real likelihood of reform. Bearing these factors in mind, it is in my judgment quite impossible to see what rational basis there was for concluding that deportation in 2012 would be a disproportionate interference with the appellant’s Article 8 rights.

[14]The fifth point is this, that although the Tribunal had noted in paragraph 8 of its determination that proportionality for Article 8 purposes was the sole question, when it reached its conclusions, it did not in terms answer that question, but instead it answered a somewhat different question, namely that in paragraph 20 whether the reformation of the appellant’s behaviour if not his attitude outweighed society’s interest in removing him. It seems to me, therefore, that the Tribunal simply did not address the correct question.

[15]For these reasons, I would allow the appeal against the Tribunal’s decision. There remains the question of what order should be made. Should the matter be remitted back for redetermination by the Tribunal, as urged upon us by Mr Jacobs, or is this one of the unusual cases in which this court is able, on the basis of the findings of the Upper Tribunal, to reach a clear conclusion for itself? In my judgment, this is one of those cases. On the basis of the Tribunal’s own factual conclusions as to what has occurred since 2007, and in the light of the acceptance by the parties of the fact that the Tribunal’s conclusion that deportation would have been richly deserved in 2007 was correct, for my part I can see no rational basis on which it could be concluded that deportation in 2012 would be a disproportionate interference with this appellant’s family life under Article 8. For those reasons, for my part I would dispose of this appeal by simply dismissing the appellant’s appeal against the Secretary of State’s decision to refuse to revoke the deportation order.

[16]I agree.

[17]I also agree that the appeal should be allowed. In paragraph 33 of its decision, the Upper Tribunal expressed the view that the appellant richly deserved deportation in 2007 when he was released from prison. Counsel appearing on his behalf did not challenge that assessment. So the question is really whether, on the findings made by the Tribunal, anything has occurred in the meantime to render his removal a disproportionate interference with his right to respect for his private and family life. I fully accept that the Upper Tribunal had to deal with the situation as it found it, and that it was right to consider what had happened since 2007. It is true that the appellant has not committed any further offences since his release from prison, a period of five rather than eight years, but, as has been pointed out, he spent part of that time in detention. Nonetheless, the fact that he has avoided committing any further offences during that period counts in his favour, as does the fact that he has been acting as a carer for his brother, though it is right to say that that is not a matter which appears to have carried great weight with the Tribunal.

[18]Apart from that, however, nothing has occurred to alter the balance. I do not accept that the onset of a mental illness that was first diagnosed in 2011 occurred during that period; had it done so, the Upper Tribunal would undoubtedly have made that clear. The relatively limited period of good conduct is not, in my view, capable of altering the balance to the extent necessary to justify the Tribunal’s decision, especially when it is set against a risk assessment made by the police which indicates that the appellant remains of medium risk of harm to the public. That is a factor which the Tribunal mentioned but appears not to have taken fully into account when it made its finding in paragraph 37 that he did not present any danger to the public now or in the foreseeable future. The Upper Tribunal was, of course, entitled to disregard that risk assessment if it felt it appropriate to do so, but if it wished to do so it should have explained clearly why that was appropriate.

[19]I agree that there is no rational basis for any decision in this case other than that the removal of the appellant would not involve a disproportionate interference with his Article 8 rights. For those reasons, and for the reasons given more fully by my Lord, Lord Justice Sullivan, I agree that the appeal should be allowed, and the court should make the order which he proposes.

Order

Appeal allowed.