HM (Malawi), R (on the application of) v Secretary of State for the Home Department [2010] EWHC 1407 (Admin)

Case No CO/15712/2009

[2010] EWHC 1407 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Manchester Civil Justice Centre

1 Bridge Street West

Venue Manchester

Date 24 th June 2010

M60 9DJ

Before

HIS HONOUR JUDGE GILBART QC,

THE HONORARY RECORDER OF MANCHESTER

(sitting as a deputy High Court Judge)

Between

THE QUEENClaimant

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Vijay Jagadesham (instructed by Paragon Law, Nottingham) for Claimant

Sam Karim (instructed by the Treasury Solicitor) for Defendant

Hearing Hearing dates : 4 th June 2010

JUDGEMENT

JUDGE GILBART QC:

INTRODUCTION

[1]This matter concerns the issue of removal directions of the Defendant Secretary of State (“SSHD”) set for 24th December 2009, which followed a decision letter of 21st December 2009, whereby the SSHD, acting under paragraph 390 of the Immigration Rules HC 395, refused to revoke a deportation order made on 5th November 2009. In that letter, the SSHD also certified under s 94(2) of the Nationality, Immigration and Asylum Act 2002 that the Claimant’s human rights claim was clearly unfounded.

[2]This judgement must deal to some extent with medical conditions which afflict the Claimant and his wife. Having regard to the decision in Z v. FINLAND 22009/93

[1997] ECHR 10

and to the Article 8 rights of both of them, it is right that they should not be identified by name. I therefore direct that their initials are to be used; HM (the Claimant) and AM (his wife). I will refer to her before her marriage as AG.

[3]On 15th February 2010, Mr Justice Nicol refused permission on the papers. The application was renewed orally. On 6th April 2010 HH Judge Stewart QC, sitting as a deputy High Court Judge, granted permission, and identified two issues for the substantive hearing.a. The closeness and genuineness of the Claimant’s relationship with his wife and the reasonableness of the location to Malawi as set out in a letter from AM’s General Practitioner of 16th December 2009

b. The relevance and application of the case of Omojudi v UK 1820/08

[2009] ECHR 1942

[4]On the 3rd June 2010 (the day before the hearing) the SSHD issued a further decision, in response to a further application of 19th March 2010 asking for a reconsideration of the Human Rights Claim. HISTORY

[5]HM, who originates from Malawi, and was born in September 1983, came to this country in 1996 for 6 months, and was admitted on a visa. He was admitted again in 1999. He has remained in this country since that date. He has therefore lived in the UK since he was almost 16.

[6]On 28th February 2001 he was convicted at the Juvenile Court of possession of an offensive weapon, and using threatening abusive insulting words or behaviour contrary to the Public Order Act, and placed on probation for 12 months. He had been served with papers for his removal as an overstayer. An appeal against that decision was allowed on 19th September 2002, on the basis that his rights under Articles 3 and 8 of the European Convention would be infringed. On 17th February 2003, he was convicted before the Magistrates of driving a vehicle with excess alcohol, disqualified from driving for 12 months and given a 12 months conditional discharge. He also received a sentence of a nominal 1 day’s imprisonment for a failure to surrender to custody (answer his bail). On 14th April 2003, he was convicted of driving with excess alcohol, disqualified driving and related offences. He was disqualified for 3 years and made the subject of a community rehabilitation order for 18 months.

[7]On 6th June 2003 he was convicted before the Magistrates of attempted burglary and theft, otherwise than in a dwelling, and conditionally discharged for 12 months.

[8]On 24th March 2004 he was given discretionary leave to remain within the UK. It follows that since at least March 2004 he has been lawfully resident in the United Kingdom.

[9]On 22nd July 2005 he was convicted by the Magistrates of causing criminal damage, given a community rehabilitation order for 12 months and ordered to pay £100 compensation and costs. On 4th January 2006, that order was revoked and a conditional discharge was substituted.

[10]On 5th February 2007 he was convicted before the Magistrates of driving with excess alcohol, and sentenced to a community order for 18 months and disqualified for 4 years.

[11]On 8th July 2008, he was convicted at the Crown Court upon his guilty plea of possession of an identity document with intent. That document was a passport belonging to his brother, used by HM to get a driving licence. He was sentenced to a period of 9 months imprisonment, and the judge made a recommendation for deportation. His sentencing remarks included the following “ …..You were given the opportunity of a community sentence and……..it is suggested that you gained great benefit from that…………..there was an application made to the court to discharge the remainder of the supervision period and that was granted. Whilst all that is going on, and you are an intelligent person, you are scheming to get back on the road so that you can become a further nuisance, putting other people at risk by driving, because that was clearly your intention, and driving without insurance and probably driving with excess alcohol, one does not know. That is premeditated, it was planned and it is indicative of your attitude towards the society in which you say you wish to live. You have been here since 2001 (sic). You were first convicted in 2001 of a serious offence involving weapons. You have been before the Court on seven subsequent occasions involving 17 offences. Whatever may be said about your contribution through your voluntary work, it does not in any way provide comfort for the way in which you are behaving within the society that you say you want to live in. This matter is so serious, having regard to its premeditated state, that it will attract an immediate custodial sentence. You will go to prison for 42 weeks. That is the custodial term. You will serve one half of that in custody and you will then be released and the remainder of the sentence will be suspended. (My italics) However, I am also making a recommendation to the Home Secretary that you be deported because the time you have given this country has not been positive or productive and for those reasons no doubt the appropriate papers will be served upon you whilst you are serving the custodial part of your sentence.”

[12]Perhaps unsurprisingly the SSHD acted upon that, and took the relevant steps to deport him. As will become apparent, that recommendation was not made the subject of an appeal to the Court of Appeal, Criminal Division, although the judge’s approach to a recommendation for deportation was not consistent with decided Court of Appeal Authority. It is also worth noting that it was passed about 3 weeks before the relevant provisions of the UK Borders Act 2007 came into force. For completeness, the remainder of the term could not have been suspended. What the judge was referring to was the effect of a release on licence at the end of the custodial part of the sentence.

[13]Deportation papers were served on 17th October 2008, and representations made. On 15th December 2008, the SSHD decided to act on the court’s recommendation. In doing so, he stated in the context of the Article 8 section of the letter that “A decision will only lead to interference with private/family life where there are insurmountable obstacles to family/private life being continued elsewhere.” As will appear below it was rightly accepted before me by counsel for SSHD that that was not the relevant test in an Article 8 case, and has been disapproved of by the Court of Appeal. After considering his family ties, the letter also rejected the claim of the Applicant’s that he was in a substantive relationship with AG, and rejected his claim that deportation would interfere with his family or private life. The SSHD also rejected the claim then pending for further leave to remain.

[14]On 29th April 2009 his appeal was heard before the Asylum and Immigration Tribunal (AIT), and dismissed by decision of 12th May 2009. Applications for reconsideration under section 103A of the Nationality, Immigration and Asylum Act 2002 (as amended) were dismissed on 4th June 2009, and a renewed application to the High Court was rejected on 14th August 2009.

[15]The Tribunal, under the heading of Article 3, concluded that medical facilities and medicines for the purposes of treating HM’s conditions were available in Malawi and that he would have family support. It adopted that conclusion for the purposes of its Article 8 assessment. It addressed the effect on his removal on others, including his mother, who lives in the UK. It concluded that he could maintain his ties with family members who would remain in the UK by means of telephone calls, letters cards and visits by them.

[16]However it rejected the claim that he had a close relationship with Ms AG as she then was. The Tribunal accepted that she required continuous medication but stated “enquiry seemed to suggest that she could receive medical treatment” were she to move to Malawi. Although the AIT’s decision is a full one on other aspects of his case, the only note of any evidence on this relates to her evidence before the Tribunal that “She had spoken to her own doctor and to “ other people” about conditions in Malawi and whether she could herself be treated. Her enquiries revealed that such medication was available. But must be paid for (sic). Her understanding was she could get the drug intake for her own condition, but would be unlikely to able to afford it.” Apart from considering her relationship with HM, The Tribunal’s only analysis of the effect on her of removal from her family was to say that “ she is a British citizen and has never been to Malawi.”

[17]The Tribunal then referred to what it called the Claimant’s “serial criminality” and, referring to its own unidentified experience of criminal courts, expressed surprise that he had not served a criminal sentence before. I consider that this was an unfortunate remark, outside the competence of the AIT in its jurisdiction. The choice of sentence was for the criminal courts which had sentenced him, and not for the AIT to question. My experience of the criminal jurisdiction (as a circuit judge and then as the Resident Judge of a very large Crown Court centre) suggests that the courts which had sentenced him had in fact passed sentences undeserving of that criticism. I shall adhere to that principle myself, so although I shall criticise the Crown Court judge’s recommendation for deportation in the part of this judgement dealing with future reconsideration of the application, nothing I say in this judgement is intended as a comment on his choice of sentence, nor of the sentences passed by any other court which dealt with the Claimant.

[18]The AIT went on to conclude that the Claimant was not a reformed character, and that his criminality must assume considerable importance in the overall proportionality decision. It upheld the SSHD’s decision.

[19]It follows from the above that the Tribunal reached no conclusion on whether it was reasonable for Miss AG to remove herself to Malawi, nor what its view would have been had it been satisfied of the existence of a close relationship. It is significant that whereas the Tribunal gave very close attention to what would happen to the treatment of his medical conditions if he returned to Malawi, and put forward a detailed analysis of his ties in the UK and the effect of removal upon them, it gave no comparable attention or analysis in her case.

[20]As noted above, removal directions were served on 14th December 2009. On 15th December 2009 the Applicant’s solicitors sent a “letter before action and application to revoke a deportation order.” It drew attention to the following matters which were said to constitute material changes of circumstancea. The marriage in October 2009 of the Applicant to AG at a named church;

b. The fact that since his release by the SSHD on bail, the Claimant had been doing voluntary work at a named agency;

c. The Claimant had been receiving further medical treatment for Graves Disease and epilepsy, and that his condition had worsened;

d. The Claimant had suffered an increase in the frequency of his epileptic fits, with an increase in medication;

e. It argued that deportation of the Claimant at that stage of his illness without confirmation of where he would obtain his medication would be in breach of Articles 3 and 8 of the ECHR;

f. The Claimant’s wife suffered from many illnesses including heart disease which had previously necessitated the insertion of pig valves into her heart. She was worried about relocating to Malawi with her husband;

g. The recent decision in Omojudi v UK 1820/08

[2009] ECHR 1942

was relied on as being the most significant change. The Claimant’s solicitors relied on it as saying that, as a result of the decision, the relevance of the Claimant’s offending before he was granted discretionary leave to remain had been altered.

[21]On 16th December 2009 the Claimant’s solicitors wrote again, drawing attention to the judgement of Sedley LJ in the Court of Appeal in JA (Ivory Coast) and another v SSHD [ 2009] EWCA Civ 5, which was published on 14th December 2009, and which they contended set out a new approach to immigration appeals premised on the ill health of an applicant in relation to Article 8.

[22]On 17th December 2009 the General Practitioner wrote as follows “This is to confirm that I am the GP who has been looking after (AM) for many years. She has regular support appointments. Unfortunately in 2006 she had very severe sub acute bacterial endocarditis leading to damage of the aortic valve in the heart which required replacement later that year. She has been under the care of the cardiac surgeons and cardiologists ever since and requires regular medication and review. (AM) has a dependent personality and has appeared more stable since she has been with her recent partner. I know that for the past 2 or 3 years they have been together and she seems to cope a lot better when she is with him. I understand that they were recently married but he is now under threat of deportation. I can confirm that she is regularly taking Losartan, Furosemide, Aspirin and Lansoprazole as well as a very small maintenance dose of methadone. I am aware that many of these medications are not available in Malawi and I understand the Home Office suggestion is that she follows her husband to Malawi when he is deported. However, this would be very inadvisable for (AM)’s health. She is very distressed by his deportation, she is very dependent on him and as there are many medical problems and dependent personality, I do not think she would cope well without him. I would appreciate you taking the above into consideration when reviewing his deportation.” I would appreciate you taking the above into consideration when reviewing his deportation.”

[23]The terms of the letter of 21st December 2009 make it clear that that letter had not reached the decision maker for the purposes of consideration in the decision. However that decision also recites the fact that the GP was willing to confirm that AM was worried about her own condition, and worried at the prospect of having to relocate to Malawi.

[24]On 21st December 2009 the decision referred to above was issued, together with accompanying Notice. The decision of the 21st December 2009 was in the following terms.

[25]After reciting the receipt of representations on 15th and 16th December 2009, setting out paragraphs 390 and 391 of the Immigration Rules (including the amendment of the latter on 9th June 2008), it continued at paragraph 6 and 7:

“6 Your client’s application has been considered in accordance with paragraphs 390 and 391 of the Immigration Rules (as amended), Your client’s continued exclusion until 10 years have elapsed since the making of the Deportation Order would normally be the proper course. We have also taken into consideration whether your client’s situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. We have also taken into account whether a. refusal to revoke the Deportation Order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees. 7. For the reasons given below, it is not considered that refusal to revoke the Deportation Order would result in any such breach and it is not accepted that there is any basis to justify revoking their (sic) Deportation Order.”

[26]I shall refer to the terms of Rules 390 and 391 below. Suffice it to say that at this point in the decision letter, they were correctly cited.

[27]Having recited the Claimant’s history of convictions, it referred to the representations that had been made. At paragraph 13 it said “13 It is noted that your client’s family and private life under

Article 8 of the ECHR

and his rights under Article 3 have already been fully considered inour letter dated 15 December 2008 and his appeal determination of 12 May 2009. His Article 3 and 8 rights were also reconsidered in his application for a High Court Review, which was refused on 14 August 2009. Nevertheless full consideration has been given again to your client’s rights under Articles 8 and 3 in light of your letters of 15 and 16 December 2009 taking into account the cases listed above.”

[28]It follows that the SSHD decided to look at the question of the Article 3 and 8 rights again.

[29]The decision went on:

“14 Regard has been had to the United Kingdom’s obligations under the ECHR, in particular Article 8 of the ECHR. It is a well-established principle of law that every state has the right to control the entry of non-nationals into its territory. Article 8 does not give a person the automatic right to choose to pursue his or her family or private life in the United Kingdom. 15 In considering whether removal to Malawi would result in a breach of your client’s rights under Article 8 of the ECHR consideration has been given to; • whether your client has established a family or private life in the United Kingdom • whether the decision to remove your client would result in interference with your client’s right to family or private life; • if yes, whether that interference is: a) in accordance with the law; b) in pursuit of one of the permissible aims listed in Article 8(2); and c) proportionate in pursuit of the permissible aim 16 lt is noted that your client is 26 years of age, married. He isnot in good health, as he suffers from Graves Disease, epilepsy and a psychotic disorder. His wife suffers from heart disease. No evidence has been submitted in relation to your client’s wife’s medical conditions. Your client has been resident in the United Kingdom for 10 years. No details of any employment your client has held in the United Kingdom are known. 17. While it is accepted that your client has established family and private life in the United Kingdom it is not accepted that the decision to deport gives rise to any interference with your client’s family and private life. Article 8 of the ECHR does not guarantee a person or their family the right to choose to live in the United Kingdom. A decision will only lead to interference with private and family life where it is considered unreasonable for family and private life to be continued elsewhere. . 18 Your clients Article 8 rights were considered in his appeal determination dated 12 May 2009 Since that time it is noted that your client has now married Miss AG , however this is not accepted (sic) that this is a material change in circumstances, since your clients relationship was considered at his appeal. The Immigration Judge commented that “ On the basis the couple were a close family unit, we explored with. (AG) what her understanding was of her receiving treatment in Malawi….Alongside that, of course was the fact that she is a British Citizen and has never been to Malawi. We attach weight to this in the proportionality evaluation. We however bear in mind that people are in fact travelling to different countries all the time. They do so alone, in couples, and with families, often with young children. In accepting that the position will be far from easy as far as both the Appellant and partner are concerned, in terms of their their family life together they would at least be a family unit, and be able to offer each other mutual support (sic) they spoke of. 19 There is medical treatment available in Malawi to treat both your client and his wife. It is accepted that the medical facilities in Malawi are poor in comparison to the United Kingdom. However as there is not a complete absence of medical care available in Malawi it is not accepted that the decision to deport would he unduly harsh to amount to a breach of your clients and his wife’s Article 8 and 3 rights. Given the existence of medical care it is not deemed unreasonable for Ms (AG) to accompany her husband to Malawi. In relation to Ms (AG) the Immigration Judges in the appeal promulgated on 12 May 2009 stated that she Ms (AG) “she had spoken to others and discovered drugs for her condition would be available, at a cost. It was more money than she could afford. Her prospective return therefore seemed to revolve around how much she could spend on medication, and where she would obtain funds? We acknowledge that such a situation is difficult. ”

In the reconsideration determination dated 14 August 2009 the immigration judge upheld the decision to dismiss your clients Article 3 and 8 claim. He stated that the “panel made findings in relation to the Applicants relationship with Ms (AG), and the availability in Malawi of treatment of the medical conditions of both the Applicant and Ms (AG). On the evidence before them it was open to the panel to make those findings and also further findings in relation to whether, in the circumstances of this case, there would be any breach of Art 3 or disproportionate breach of Article 8 in deporting the applicant.” The High Court refused your clients application for reconsideration as it was not found that the panel has made an error in law. 20 It is accepted that although your clients wife may not wish to relocate to Malawi, whether she chooses to accompany her husband to Malawi to continue with family life is her decision, and therefore any split in their family life would not be attributable to UKBA. Should your clients wife decide not to accompany him, they can maintain contact through modern channels of communication. This point was reiterated by the Immigration Judges in the appeal determination at Para 74 whereby they state “We think the couple will endeavour to maintain it [their relationship] if all that they told us, was true. They can do so by means of the same channels such as telephone calls, letters and similar, Ms (AG) could potentially visit the subject, always, to financial constraints” 21 Whilst your client has been in the United Kingdom your client may have established friendships and employment which may constitute private life for the purposes of

Article 8 ECHR

. You state since the decision to deport your client has reintegrated into the community and has carried out voluntary work. It is submitted that as a grown man he could re-integrate himself back in to life in Malawi and assist in volunteer work here. It is submitted that any friendships that your client has developed in the United Kingdom may continue through modern channels of communication such as the telephone, email or letters. We can see no reason why your client would not be able to use any skills he has gained whilst in. the United Kingdom in Malawi to gain employment there. 22 For reasons stated above it is not accepted that the decision in question would give to any interference with your client’s family and private life. 23 Article 8(2) states that any interference with Article 8 rights must he in accordance with the law and in pursuit of one of the permissible aims set out in Article 8(2). Even though it is considered that the decision to remove your client to Malawi will not give rise to interference with his rights under Article 8, we are satisfied that any interference, were it to be accepted would in accordance (sic) with the relevant legislation and the UK Border Agency’s published policies in pursuit of the permissible aim of the prevention of disorder and crime the maintenance of an effective immigration control. (sic) 24 Even were it accepted that the decision to remove your client to Malawi would result in interference with his family life, we take the view that any interference could (sic) be justified in the circumstances of your client’s case. Consideration has been given as to whether any interference with your client’s family life, were it to be accepted, would be proportionate to the permissible aims of preventing crime and disorder and maintaining proper immigration control. 25 Although your client has been resident in the United Kingdom for a number of years he spent his youth and formative years in Malawi. In view of this it is not considered unreasonable to expect him to be able to readjust to life in Malawi. 26 Whilst it is accepted that your client has established a private and family in the UK with his wife, it is not considered that his removal will amount to a breach of Article 8. It is noted that your client married, in the knowledge that his immigration status in the United Kingdom was uncertain and that he was subject to deportation action and had lost his appeal against deportation action. Therefore your client and his wife both should have been aware of the possibility that they might not be able to continue their marriage in the UK. 27 It is therefore believed that your client’s deportation would not be in breach of

Article 8 of the ECHR

and Human Rights Act 1998. Article 3 28 You claim that your client had been taking medication further to his medical condition including Graves disease and epilepsy, and that his medication has been increased in order to control an increase in his epileptic fits. You claim that his wife reports that he has had 5 seizures in two weeks. Your clients Article 3 rights have been fully considered at his deportation appeal, where it was ruled that his deportation would not cause the UK to be in breach of his Article 3 rights. 29 You claim that his medication has increased, as lie is suffering more fits. As stated above there is medical treatment available in Malawi for your clients conditions, therefore the fact that his medication has now increased, does not materially change anything as regards his Article 3 claim. The medication will still he available, albeit your client will have to take more of it now to manage his condition. In his appeal against deportation the Immigration judge did not accept your clients claim that his deportation would breach his rights to Article 3. The judge stated that “having reviewed the Appellants position in terms of Article 3 we do not find that his situation now on return to his country of origin, crosses the threshold as it did in 2002. We consider that he will take whatever medication is made available for him there. And, he will he able to access both emotional and practicable support from other family members” His rights under Article 3 were also reconsidered on 14 August 2009 by the High Court who upheld the previous decision that his deportation would not amount to a breach under Article 3. 30 Your client was previously granted Discretionary Leave as a result of his health care needs on 24 March 2004 following an allowed appeal against his removal as an overstayer. However in his appeal promulgated on 9 May 2009 the Immigration Judge considered the tribunals decision in 2002 and ruled that the same considerations that applied in 2002 did not apply to your clients case now. 31 You state that you wish to rely on the case of Omojoudi v The United Kingdom — 1820/08

[2009] ECHR 1942

. You state that in that case the European Court provided the following analysis in respect of offences committed before and after the Secretary of State’s grant of ILR to that applicant; [42 & 43] 32 “42 In the present case the applicant was granted Indefinite Leave to Remain following his conviction for relatively serious crimes involving deception and dishonesty. The Court attaches considerable weight to the fact that the Secretary of State for the Home Department, who was fully aware of his offending history, granted the applicant Indefinite Leave to Remain in the United Kingdom in 2005” 33 You state your client was granted Discretionary Leave to Remain after his most serious offences i.e. those offences predating the immigration appeal in 2002, which included possession of an offensive weapon; offences committed during your client’s then appeal being allowed on 19 September 2002, and Discretionary Leave to Remain being granted on 24 March 2004. 34 However your clients case can be distinguished on the facts from the case of Omojudi. In the case of Omojudi he was granted Indefinite Leave to Remain in the United Kingdom At the time the Home Office was aware of his offending history and still granted him ILR, therefore at that time it was our intention to allow Mr Omojudi to remain in the UK for an indefinite period of time.. The same cannot he said to be true. of your client. Your client was only granted a period of Discretionary Leave for a period of time, the very nature of Discretionary Leave means that this leave is subject to review once it expires. Therefore it is not believed that the Court would attach the same weight to someone who was granted discretionary leave for a limited period to someone in Mr Omojudi’s position. 35 You further go on to state that the judgement in Omojudi then goes on to say at Para 43 36 “43. Therefore, in the circumstances of the present case, the Court finds that for the purposes of assessing whether the interference with the applicant’s family and private life was necessary in a democratic society, the only relevant offences are those committed after the applicant was granted Indefinite Leave to Remain” 37 You claim that the same analysis applies to your client, that the offences that post date the grant of DLR were not offences involving violence/drugs/sexual offending; unlike the defendant in Omojudi. You go on to state that your clients later offences were less serious than the offences committed prior to the grant of DLR. You state that the offences committed by your client after the grant of DLR are far less serious than the sexual offences committed by the applicant in Omojudi. 38 It is not accepted that your interpretation of the ruling in Omojudi stated in the above paragraph can apply to your client in the way you claim, As stated above your client was only granted Discretionary Leave arid not Indefinite Leave to Remain. You state that your clients convictions before the grant of DLR are most serious that those committed after the grant of DLR. That may be so, hut this does not change anything in relation to his deportation matter. Your client was served with a Warning letter along with his grant of Leave letter informing him that if he should come to adverse attention again, then he may be liable for deportation action. 39 Following the courts reasoning in Para 43 the only relevant offence would be those committed after the applicant was granted ILR. Applying this to your clients case the only offence which would be relevant would be his conviction on 8 July 2008 for possession of a false identity document with intent. He was court recommended (sic) for deportation unlike Mr Omojudi. In Mr Omojudi’s case his representatives sought to rely on the fact that he submitted that the sentence imposed for this offence, being less than two years, would not have resulted in a decision to deport under the policies in place at the time. This was reflected in the fact that the sentencing judge did not recommend deportation. It is apparent to us that the decision in Omojudi can he clearly distinguished from your clients case and it is not applicable to your clients case. 40 You state that your clients risk of harm to the public was assessed as low in his pre-sentence report and this is highly relevant to the proportionality assessment undertaken in cases where Article 8 is relevant. 41 It is correct to say that his risk of harm was assessed as low by the probation service, however in assessing proportionality all circumstances must he looked at. The issue of proportionality was considered in his deportation appeal. The Immigration Judges found that “On the debit side of the proportionality exercise, has to be seen the Appellant’s criminality. We are required to give it due weight, and do so. We bear in mind in terms of the appellants history of offending applying the authority of AA (Spent Convictions). No submissions were made by either side on the point. It seems to us because the learned Circuit Judge attached considerable weight to the Appellants’ earlier history, that the appellant has been a persistent and habitual offender virtually from the beginning. Whilst it is true to say that he has not been in fact dealt with for a crime of violence, nevertheless he gave us details about his obtaining and arming himself with an offensive weapon several years earlier. We have looked at the Respondent’s summary as far as the criminal history is concerned. There are a number of offences for driving whilst disqualified. One of them, at least, was when the appellant was some two or three times over the prescribed limit. As a panel, and as having experience in Criminal courts, we are surprised that the Appellant’s OPL (note- i.e. Over the Prescribed Limit) charges have not resulted in a custodial sentence previously..... We are afraid it is inevitable that: the Appellant’s criminal history must assume considerable importance in the overall proportionality decision. We are of course also required to give due weight to the Secretary of States decision in this matter requiring deportation..... Accordingly, having carefully considered all of the competing considerations in the case in the exercise of judicial function, we answer the ultimate question in favour of the Respondents decision being upheld We consider the Respondents’ decision to deport the Appellant is in accordance with the law, pursues a legitimate aim, and is in the final analysis, proportionate.” 42 You also wish to rely on the case law of JA (Ivory Coast) & Anor v Secretary of State for the Home Department [2009]. You claim that this Sedley LJ (sic), giving the judgement of Court (sic), confirmed that the Appellants would be placed in a different situation. to the applicants in. the cases of D v UK and N v UK in relation to Article 8, on account of (i) an Appellants lawful entry into the UK and (ii) the State having “committed” itself to the provision of healthcare to the appellant. You state that your client entered the UK lawfully and it is right to say that the State ‘‘committed” itself to providing your client with necessary healthcare, further to his appeal being allowed by Mr C.J. Bourn on 19 September 2002 under Articles 3 and 8 of ECHR. 43 It is not accepted that the State committed itself to providing your client with necessary healthcare indefinitely. He was granted a period of Discretionary Leave up until 24 March 2007 and it is accepted up until the expiry of his leave he would he entitled to healthcare in the UK. Once his leave expired his leave was up for review, and it was reviewed and refused. In JA the judges considered the issue of whether a commitment by the UK to provide medical care exists. They state at Para 23 that “ the argument for a formal or legal assumption of responsibility goes, in our judgement, too high” 44 In the case of JA (lvory Coast) & Anor v Secretary of State for the Home Department [2009] the appellant was an African woman who entered the UK legally and was treated with HIV drugs. The appellant was refused renewal of leave to remain and her appeal against his decision was refused. She then sought permission to appeal to the Court of Appeal. In JA’s case she was not subject to deportation action like your client. In JA’s case the court commented that “ the potential discontinuance of years of life saving NHS treatment, albeit made available out of compassion and not out of obligation, is in our judgement capable. of tipping the balance of proportionality in her favour. This is not the case with regards to your client as he does not need life saving drugs, drugs are available to him in his Malawi (sic) and the issue of proportionality has already been considered in his case in respect of his medical condition particularly and it was found that his medical condition did not tip the balance of proportionality in his favour. The court of appeal allowed JA’s appeal only to the extent of remitting it to the AIT. They state “for the avoidance of doubt we make it clear that this permits the AIT on the applicant of either party, to make an up to date appraisal of the availability of ARV and other treatment in Ivory Coast and JA’s potential access to it” Section 94 Certification 45 Your application for human rights (sic) has been considered but for the reasons given above your client’s circumstances have not materially changed since his Deportation Order was made. Your client’s circumstances are not sufficiently exceptional to justify the revocation of the Deportation Order against him. 46 Your submissions have been fully considered but we are satisfied that in accordance with paragraphs 390 and 391 (as stated above) there is no basis to justify the revocation of your client’s Deportation Order. Deportation remains a proportionate response in this case. The application for revocation of the Deportation Order is therefore refused. A refusal to revoke a Deportation Order is an immigration decision within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002. The decision therefore generates a further right of appeal and a notice of decision is therefore attached. By virtue of section 92 of the 2002 Act the appeal may only be exercised after your client has left the United Kingdom. An immigration decision to this effect (the accompanying ICD 1078 notice) has been made pursuant to section 82(2)(k)of the Nationality, Immigration and Asylum Act 2002 (‘the 2002’ Act’). 47 In addition, after considering all the evidence available to him,. the Secretary of State has decided that your client’s human rights claim is clearly unfounded as your clients Article 3 and 8 were dismissed at an appeal against deportation and at his reconsideration hearing (sic) .Therefore the Secretary of State hereby certifies your client’s human rights claim as clearly unfounded under section 94(2) of the Nationality, Immigration and Asylum Act 2002. 48 These further submissions have not been considered under paragraph 353 of the Immigration Rules, The certification of this claim under section 94 is made further to the judgment of the Court of Appeal in BA (Nigeria) and PE (Cameroon)

[2009] EWCA Civ 119

in respect of the meaning of “an asylum claim or human rights claim” in section 92 (4)(a) of the 2002 Act. 49 As your client’s human rights claims have been certified as clearly unfounded she (sic) may not appeal while in the United Kingdom” ECHR, in particular

Article 8 of the ECHR

. It is a well-established principle of law that every state has the right to control the entry of non-nationals into its territory. Article 8 does not give a person the automatic right to choose to pursue his or her family or private life in the United Kingdom. • whether your client has established a family or private life in the United Kingdom • whether the decision to remove your client would result in interference with your client’s right to family or private life; • if yes, whether that interference is: a) in accordance with the law; b) in pursuit of one of the permissible aims listed in Article 8(2); and c) proportionate in pursuit of the permissible aim . Article 3 Section 94 Certification

[30]As noted above, proceedings were taken by the Claimant.

[31]A further letter was provided by AM’s General Practitioner on 2nd March 2010:

“ This is to confirm that the situation is unchanged since I last wrote to you about (AM)’s husband’s deportation. I think it would be very injurious to (AM)’s health if he were deported as I suspect she would follow him and the cardiac tablets she is on and other medications are not widely available in Africa. Her mental health has also gone downhill very much since he has been under the threat of deportation; she has been very depressed and her alcohol problem has got much worse. However since he has come home from the detention centre I can see a marked improvement in her and she has already reduced her drinking which will clearly help her heart and the other medical problems she has……….”

[32]On 18th March 2010 the Claimant’s solicitor wrote to the SSHD asking for a reconsideration of the decision in the light of what she called updated evidence. That evidence included the GP’s letter, and also material relating to the Claimant’s treatment.

[33]As noted above, on the 3rd June 2010 (the day before the hearing) the SSHD issued a further decision. At the hearing the SSHD contended that any deficiencies in the decision’s treatment of the position of AM insofar as it affected the Article 8 rights of both HM and AM had now been dealt with: whereas the Claimant argued that it revealed more failures in the treatment of the case by the SSHD, and that the approach and reasoning of the SSHD in the new decision was not supportable.

[34]The new decision recited the history, and then continued by citing paragraph 353 of the Immigration Rules: ‘When a. human rights or asylum claim has been refused and any appeal relation to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has preciously been considered. The submissions will only be significantly different if the content(i) had not already been considered; and

(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection”.

[35]It also recorded the principle that the SSSHD had to give anxious scrutiny to the question of whether further submissions create a realistic prospect of success before an Immigration Judge, pursuant to WM (DRC)v SSHD

[2006] EWCA Civ 1495

. Having identified the documents now submitted, it went on: 10 The supporting evidence letters from (named persons) all make references to your client’s alleged good character. He may well be a reformed character, does not change the fact that your client, because of his criminal activity, is subject to deportation action under the United Kingdom’s legislation. These references also refer to the loving and committed relationship between your client and his wife. It is accepted that they are in a subsisting relationship. It is clear from your submissions that your client has established a private life in the UK. The references from (other named persons) all attest to your client engaging in voluntary work in the community, which is commendable. 11 It is noted that your client’s family and private life under

Article 8 of the ECHR

and his rights under Article 3 have already been fully considered in our letter dated 21 December 2009, and in his appeal determination of 12 May 2009. His Article 3 and 8 rights were also reconsidered in his application for a High Court Review, which was refused on 14 August 2009. Nevertheless full consideration has been given again to your client’s rights under Article 8 and 3. 12 Regard has been had to the United Kingdom’s obligations under the ECHR, in particular

Article 8 of the ECHR

, consideration has been given to;• whether your client has established a family or private life in the United Kingdom

• whether the decision to remove your client would result in interference with your client’s right to family or private life;

• if yes, whether that interference is: a) in accordance with the law; b) in pursuit of one of the permissible aims listed in Article 8(2); and c) proportionate in pursuit of the permissible aim. 14 It is noted that your client is 26 years of age and he is married. He is not in good health, as he suffers from Graves Disease, epilepsy and a psychotic disorder. His wife suffers from heart disease. Your client has been resident in the United Kingdom for 10 years. 15 While it is accepted that your client has established family and private life in the United Kingdom it is not accepted that the decision to deport gives rise to any interference with your client’s right to a family and private life.

Article 8 of the ECHR

[2009] EWCA Civ 5

. That was a case involving a foreign national and her partner and child, both of whom were British citizens. The question was whether the life of the family could reasonably be enjoyed outside the UK. At paragraph 31, the court finds that there is a seriousness test which requires the obstacles or difficulties faced to go beyond matters of choice or inconvenience. The question in any case will be whether the hardship consequent on removal will go far enough beyond this baseline to make removal a disproportionate use of lawful immigration controls 21 Deportation cannot be resisted merely because medical facilities are better or more widely available in the UK than in Malawi. In addition deportation cannot be resisted because drugs are cheaper in the UK than Malawi. In relation to Ms (AG) the Immigration Judges in the appeal promulgated on 12 May 2009 stated “she [Ms AG] had spoken to others and discovered drugs for her condition would be available, at a cost. It was more money than she could afford. Her prospective return therefore seemed to revolve around how much she could spend on medication, and where she would obtain funds? We acknowledge that such a situation is difficult.” Para 63] In the reconsideration determination dated 14 August 2009 the Immigration Judge upheld the decision to dismiss your clients Article 3 and 8 claim. He stated that the “panel made findings in relation to the Applicants relationship with Ms (AG), and the availability in Malawi of treatment of the medical conditions of both the Applicant and Ms (AG). On the evidence before them it was open to the panel to make those findings; and also further findings in relation to whether, in the circumstances of this case, there would be any breach of Article 3 or disproportionate breach of Article 8 in deporting the applicant” The High Court refused your clients application for reconsideration as it was not found that the panel has made a an error in law. 22 It is accepted that although your clients wife may not wish to re-locate to Malawi, whether she chooses to accompany her husband to Malawi to continue with family life is her decision, and therefore any split in their family life would not be attributable to UKBA. Should your client’s wife decide not to accompany him, they can maintain contact through modern channels of communication. This point was re-iterated by the Immigration Judges in the appeal determination of 12 May 2009 whereby they state “We think the couple will endeavour to maintain it [their relationship], if all that they told us, was true. They can do so by means of the sane channels such as telephone calls, letters and similar. Ms (AG) could potentially visit the subject, always, to financial constraints (sic)” [Para 74] 23 Whilst your client has been in the United Kingdom your client may have established friendships and employment, which may constitute private life for the purposes of

Article 8 ECHR

. You state since the decision to deport your client has reintegrated into the community and has carried out voluntary work. It is submitted that as a grown man he could re-integrate himself back in to life in Malawi and assist in volunteer work there. It is submitted that any friendships that your client has developed in the United Kingdom may continue through modern channels of communication such as the telephone, email or letters. We can see no reason why your client would not be able to use any skills he has gained whilst in the United Kingdom in Malawi to gain employment there. The Immigration Judge in his appeal determination promulgated 12 May 2009 stated “We acknowledge the fact that the Appellant has from time to Time worked, but we do not have a clear analysis of when, or what he did. We accept there axe occasions when it is clear the Appellant can when he puts his mind to it can make useful decisions and make a constructive contribution to society. We have in mind his voluntary work and take that into account. Together with the obvious friendships that have followed the Appellant’s time in the United Kingdom (sic).” [Para 58] 24 For the reasons stated above it is not accepted that the decision in question would give rise to any interference with your client’s family and private life. 25 Article 8 (2) states that any interference with Article 8 rights must be in accordance with the law and in pursuit of one of the permissible aims set out in Article 8(2). Even though it is considered that the decision to remove your client to Malawi will not give rise to interference with his rights under Article 8, we are satisfied that any interference, were it to be accepted would in accordance with the relevant legislation and the UK Border Agency’s published policies in pursuit of the permissible aim of the prevention of disorder and crime and the maintenance of an effective immigration control. 26 On the issue of proportionality, reliance is also placed on paragraph 20 of Huang and Kashmiri v SSHD

[2007] UKHL 11

which refers to the question whether refusal of leave to enter or remain prejudices family life in a manner sufficiently serious to amount to a breach of fundamental tights protected by Article 8. 27 Even were it accepted that the decision to remove your client to Malawi would result in interference with his family life, we take the view that any interference could be justified in the circumstances of your client’s case. Consideration has been given as to whether any interference with your client’s family life, were it to be accepted would be proportionate to the permissible aims of preventing crime and disorder and maintaining proper immigration control. 28 Although your client has been resident in the United Kingdom for a number of years he spent his youth and formative years in Malawi. In view of this it is not considered unreasonable to expect him to be able to readjust to life in Malawi. 29 Whilst it is accepted that your client has established a private and family in the UK with his wife, it is not considered that his removal will amount to a breach of Article 8. It is noted that your client married, in the knowledge that his immigration status in the United Kingdom was uncertain and that be was subject to deportation action and had lost his appeal against deportation action. Therefore your client and his wife both should have been aware of the possibility that they might not be able to continue their marriage in the UK. 30 It is therefore believed that your client’s deportation would not be in breach of

Article 8 of the ECHR

and subsequently (sic) the Human Rights Act 1998. Article 3 31 ……………………… 32 ……………………… 33 Your clients Article 3 rights have been fully considered at his deportation appeal, where it was ruled that his deportation would not cause the UK to be in breach of his Article 3 rights. 34 As stated above there is medical treatment available in Malawi for your clients conditions, therefore the fact that his medication may now have increased, does not materially change anything as regards his Article 3 claim. The medication will still be available, albeit your client will have to take more of it now to manage his condition. In his appeal against deportation the Immigration Judge did not accept your clients claim that his deportation would breach his rights to Article 3. The judge stated that “having reviewed the Appellants position in terms of Article 3 we do not find that his situation now on return to his country of origin, crosses the threshold as it did in 2002. We consider that he will take whatever medication is made available for him there. And, he will be able to access both emotional and practicable support from other family members” [Para 51]. His rights under Article 3 were also reconsidered on 14 August 2009 by the High Court who upheld the previous decision that his deportation would not amount to a breach under Article 3. 35 Your client was previously granted Discretionary Leave as a result of his health care needs on 24 March 2004 following an allowed appeal against his removal as an overstayer. However in his appeal promulgated on 9 May 2009 the Immigration Judge considered the tribunals decision in 2002 and ruled that the same considerations that applied in 2002 did not apply to your clients case now. 36 The issue of proportionality was considered in his deportation appeal. The Immigration Judges found that “On the debit side of the proportionality exercise, has to be seen the Appellant’s criminality. We are required to give it due weight, and do so. We bear in mind in terms of the appellants history of offending applying the authority of AA (Spent Convictions). No submissions were made. by either side on the point. It seems to us because the learned Circuit Judge attached considerable weight to the Appellants’ earlier history that the appellant has been a persistent and habitual offender virtually from the beginning. Whilst it is true to say that he has not been in fact dealt with for a crime of violence, nevertheless he gave us details about his obtaining and arming himself with an offensive weapon several years earlier. We have looked at the Respondent’s summary as far as the criminal history is concerned. There are a number of offences for driving whilst disqualified. One of them, at least, was when the appellant was some two or three times over the prescribed limit. As a panel, and as having experience in Criminal courts, we are surprised that the Appellant’s OPL charges have not resulted in a custodial sentence previously.... We are afraid it is inevitable that the Appellant’s criminal history must assume considerable importance in the overall proportionality decision. We are of course also required to give due weight to the Secretary of States decision in this matter requiring deportation... Accordingly, having carefully considered all of the competing considerations in the case in the exercise of judicial function, we answer the ultimate question in favour of the Respondents decision being upheld We consider the Respondents’ decision to deport the Appellant is in accordance with the law, pursues a legitimate aim, and is in the final analysis, proportionate.” [Para’s 75, 80, 81 and 82] 37 Your client’s deportation has been reconsidered on all the evidence available, including the further submissions, but it has been decided that the Home Office decision of 15 December 2008, the decision of the Immigration Judge on 12 May 2009, the decision of the Immigration Judge on 14 August 2009 and the decision to refuse to revoke your client’s deportation order on 21 December 2009 should not be reversed. 38 Because it has been decided not to reverse the decisions of the earlier claims and it has been determined that your client’s submissions do not amount to a fresh claim, your client has no further right of appeal. 39 Your client has no basis of stay in the United Kingdom and arrangements will he made for his removal to Malawi.”

THE CENTRAL ISSUES

[36]The main issues which I must determine area. What was the task which the SSHD was required to perform in the decision of 21st December 2009 ?

b. What was the status of the earlier decisions by the SSHD to deport the Claimant, of the AIT to dismiss the Claimant’s appeal, and of the Order of the High Court refusing to order reconsideration ?

c. Did the SSHD in his first decision address the Article 8 issue in a legally appropriate manner ?

d. Is the SSHD’s conclusion that his asylum claim was clearly unfounded a lawful one ?

e. What is the status of the second decision of 3rd June 2010 ?

f. In the second decision, did the SSHD treat the application now before her in a legally appropriate manner ?

[37]The question of whether the decision that the claimant HM should be removed from the UK was properly taken turns on the application of

Article 8 of the ECHR

to his application. If he has a substantive relationship with AM, then the effect of the decision on her Article 8 rights is of course also relevant (Beoku-Betts v SSHD

[2009] 1 AC 115

). While it is correct to say that the case has also been considered under Article 3, both counsel agree that it is the Article 8 question which goes to the heart of this case. That is not to say that the facts relevant to an Article 3 claim are irrelevant however, as I shall describe below.

THE IMMIGRATION RULES

[38]The application determined in December 2009 was made under paragraphs 390 and 391 of the Immigration RulesHC 395 (as amended) 390. An application for revocation of a deportation order will be considered in the light of all the circumstances including the following:(i) the grounds on which the order was made;

(ii) any representations made in support of revocation;

(iii) the interests of the community, including the maintenance of an effective immigration control;

(iv) the interests of the applicant, including any compassionate circumstances. 391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion (i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or (ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees. will normally be the proper course. In other cases revocation of the order will not normally be authorised unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before, or the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order. 392. Revocation of a deportation order does not entitle the person concerned to re-enter the United Kingdom; it renders him eligible to apply for admission under the Immigration Rules. Application for revocation of the order may be made to the Entry Clearance Officer or direct to the Home Office.” 39. As paragraph 48 of the first decision letter shows, the claim was not considered pursuant to Paragraph 353 of the Immigration Rules. 40. The second application was treated by the decision letter of 3rd June 2010 in the context of paragraph 353 of the Immigration Rules. It reads:

“Fresh Claims 353. When a human rights or asylum claim has been refused or withdrawn or treated as withdrawn under paragraph 333C of these Rules and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content: (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. This paragraph does not apply to claims made overseas.” (i) had not already been considered; and (ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection. STATUS OF EARLIER DECISIONS 41. It is necessary to say something of the status of earlier decisions, because there are times in their decisions where the SSHD misunderstands the position. The application before the SSHD on 21st December 2009 was an application under paragraph 390 of the Immigration Rules for revocation of the deportation order. The appeal to the AIT had been an appeal against the deportation order. It follows that the issue is not whether the original order was correctly made, or the appeal rightly dismissed, but whether circumstances had changed or new information come forward since it was made, such that revocation should take place. 42. Further, the nature of the High Court decision after the AIT hearing was not, as asserted by the SSHD, a reconsideration by the High Court. It had no power to engage in that process. Its task was restricted by section 103A(2) of the 2002 Act as follows: “(2) The appropriate court may make an order under subsection (1) (a) only if it thinks that the Tribunal may have made an error of law………... (b)…………………..” (a) only if it thinks that the Tribunal may have made an error of law………... (b)…………………..” 43. It follows that it is impermissible for the SSHD to rely on the High Court decision to refuse reconsideration as any form of endorsement of the merits of the decision of either the SSHD or of the AIT. It was simply a consideration of the legalities of the decision. THE LEGAL CONTEXT 44. I shall deal with this as follows a. Application of Articles 8 and 3 of the European Convention on Human Rights b. Testing the legality of the decisions c. The meaning of “clearly unfounded” in section 94(2) of the Nationality Immigration and Asylum Act 2002 d. The fresh claim issue and the “anxious scrutiny” test. A Application of Articles 8 and 3 of the European Convention on Human Rights 45. I include Article 3 in the discussion because of the weight placed upon it by the various decision letters. Article 3 Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. 46. Over the years, and after no little judicial debate, the Courts in the United Kingdom have established a clear set of principles for the application of Article 8. It is fair to say that the way forward has not always been a direct and consistent one. 47. The approach now to be adopted was succinctly summarised by Sedley LJ in VW (Uganda) v SSHD [ 2009] EWCA Civ 5 at paragraphs 17-24: “The law 17 Before turning to the detail of the respective determinations, it may be useful to set out what is now understood on all hands to be the relevant law. 18 In EB (Kosovo) [2008] UKHL 41, at §12, Lord Bingham, with the assent of the other members of the Appellate Committee, said: "Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires." 19 The words which I have italicized lay to rest an issue which has troubled decision makers and advocates at least since the decision of this court in R (Mahmood) v Home Secretary [2001] 1 WLR 840, because of the use by Lord Phillips MR, in the course of giving the second judgment, of the phrase "insurmountable obstacles" in the context of art. 8. This court sought, in the later case of LM (DRC) v Home Secretary [2008] EWCA Civ 325 to explain the contextual significance of the phrase. Ms Busch adopts what I said in §11-14 of my judgment in that case. But for the present, at least, the last word on the subject has now been said in EB (Kosovo). While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts. 20 What those facts are, however, can in art. 8 cases be a subject of real difficulty, because they may well include the intentions of individuals should the very event occur which they are trying to forestall. I will return to this problem when I come to the disposal of the present cases. 21 Art 8 cases, including those before the court, also encounter occasional difficulty in the application of Lord Bingham's tabulation in Razgar. In §17, it will be recalled, he set out the sequence of questions as follows: "(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?" (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved? 22 As this court made clear in AG (Eritrea) [2007] EWCA Civ 801, §26-28, the phrase "consequences of such gravity" in question (2) posits no specially high threshold for art. 8(1). It simply reflects the fact that more than a technical or inconsequential interference with one of the protected rights is needed if art. 8(1) is to be engaged. 23 There will also be unnecessary difficulty if the relationship of questions (4) and (5) is misunderstood. The emphasis in question (4) is not on simple necessity but on whether the need for the general restriction on the primary right lies within one of the specified purposes. If it does, then whether the particular restriction is necessary in a democratic society engages question (5). Clearly, if the restriction is plainly unnecessary, the art. 8 question will be answered in the appellant's favour; but that will be rare. In any other case, once a permitted purpose has been established in answer to question (4) (as in cases governed by the Immigration Rules it generally will be), the inquiry moves to question (5) which, by focusing on the proportionality of the measure in the individual case, gives effect to the jurisprudence of the Strasbourg court as to what is "necessary in a democratic society". There is no discrete or prior test of necessity. 24 EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. It is to be hoped that reliance on what was a misreading of Mahmood, as this court had already explained in LM (DRC) [2008] EWCA Civ 325 (and as Collins J had previously done in Bakir [2002] UKIAT 01176, § 9), will now cease.” "Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires." "(1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?" (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved? 48. The VW (Uganda) decision also gives cogent guidance, binding on this court, on the approach to evaluation of an Article 8 claim. I refer to paragraphs 25-39 of Sedley LJ’s judgement, and in particular to the passages which I have italicised from paragraphs 31 and 32 on the approach to decision making: 31 “ In a fully and carefully reasoned and determination, the AIT (Hodge P and SIJ Storey) concluded that, while the immigration judge had erred in finding that art 8 was not engaged, any such error was cured by his alternative finding that, assuming it to be engaged, removal would not be disproportionate. It is no longer necessary to follow their scholarly tracing of the concept of insurmountable obstacles in the Strasbourg jurisprudence or their endeavour to reconcile it with domestic case-law, because – as is common ground - the correct test is now to be found in EB (Kosovo). But recognition should be given, as Richard Drabble QC for both appellants readily accepted, to the conclusion at which the AIT arrived (§44) that, if a removal is to be held disproportionate, "what must be shown is more than a mere hardship or a mere difficulty or mere obstacle. There is a seriousness test which requires the obstacles or difficulties to go beyond matters of choice or inconvenience." I would respectfully endorse this. The question in any one case will be whether the hardship consequent on removal will go far enough beyond this baseline to make removal a disproportionate use of lawful immigration controls. This in turn will depend, among many other things, on the severity of the interference. If the appellant's partner, for example, was familiar with Uganda, the consequences of removal might be that much less severe; but the impact on the rights attending his citizenship of this country would still weigh heavily in the scales. 32 The AIT concluded (§50) that, given the biography of the appellant's partner, "it was entirely open to the immigration judge … to view the degree of disruption as not being at more than the level of hardship or difficulty". There are several problems with this conclusion. One is that, as this court pointed out in AB (Jamaica) [2007] EWCA Civ.1302 the impact of one partner's removal on his or her family life has to be looked at in the round. It is therefore only if it can properly be said that the appellant's partner either will go to Uganda with her or will be behaving unreasonably if he chooses not to that the tribunal can avoid judging the overall proportionality of an enforced family break-up. Another is that the way the AIT expresses it is significantly different from the way the immigration judge expresses it. The immigration judge's finding, cited in §29 above, follows a readoption of his finding that there are no insurmountable obstacles to re-establishing family life in Uganda and is followed by a finding that art. 8 is not engaged at all. It is based on no structured reasoning about the predictable or potential impact of removal on the three people directly affected.” 49. Article 3 is only relevant in this case insofar as it is raised in connection with the availability of medical treatment. But a case on disparity of the availability of medical facilities is a wholly exceptional one in the context of Article 3: see N v UK [2008] ECHR 453 and the discussion in EM (Lebanon)v SSHD [2009] AC 1198 per Lord Hope at paragraphs 7-10. However in the context of Article 8, the test of the effect on family life includes asking whether it would be unreasonable for the spouse to decline to follow the deportee to the other country. That is a judgement to be made by looking at all matters relevant to such a decision. The effect on the health of the deportee and spouse cannot be excluded from that judgement- indeed one can be confident that it would be a potentially critical matter. Thus it was that, as both counsel accepted, the medical condition of each, and the availability of, and accessibility to, medical and pharmaceutical treatment to alleviate or treat any diseases or disorders must be relevant to that issue. B Testing the legality of the decisions 50. The first decision must pass the usual tests for decisions in public law. One must then add in the particular approach required as shown in VW (Uganda), namely a. The SSHD must address the tasks asked of him by statute and by the relevant paragraphs of the Immigration Rules, and carry them out in accordance with them b. He must take into account material considerations, but eschew immaterial ones c. His reasoning must be adequate and deal with the principal points raised before him. In the context of the subject matter here, it must show structured reasoning about the predictable or potential impact of removal on the two people directly affected (the VW(Uganda) approach). d. The decision must not be irrational. C The meaning of “ clearly unfounded” in section 94(2) of the Nationality, Immigration and Asylum Act 2002 51. Although there is judicial debate about whether the test under section 94(2) is to the same effect as the test of a “ fresh claim” under Paragraph 353, it is well settled that “clearly unfounded” means that the claim is so clearly lacking in substance that it had no more than a fanciful prospect of success: see Laws LJ in R (AK (Sri Lanka) v SSHD [2009] EWCA Civ 447 at paragraph 34, and Lord Hope of Craighead in R (Thangarasa) v SSHD [2002] UKHL 36 [2003] 1 AC 920 at paragraph 34. It follows that it is not enough for certification that the SSHD has decided to reject a human rights claim. The adverb “clearly” is intended to add something to the word “unfounded” and has been included for a purpose. In my judgement standard public law principles require that the SSHD was under a duty to give reasons why he considered that the claim was clearly unfounded. He was of course entitled to do so succinctly. Further, in determining whether he gave reasons, and what they were, I accept Mr Karim’s submission that one must read the decision as a whole. D The fresh claim issue and the “anxious scrutiny” test. 52. The Court of Appeal has given guidance in WM (DRC) v SSHD [2006] EWCA 1495 at paragraphs 6 - 11 per Buxton LJ on the application of the rule in paragraph 353 to asylum claims. The guidance has been applied to Article 8 claims also - see R (AK (Sri Lanka) v SSHD [2009] EWCA Civ 447 at paragraph 29. It is to be noted that a decision of the SSHD that a claim is not a fresh one, is only challengeable on irrationality grounds. However when addressing the issue, the SSHD must give anxious scrutiny to whether there would be interference with the relevant human rights. I refer to paragraphs 6-7 and 11 of Buxton LJ’s judgement: . “6 There was broad agreement as to the Secretary of State's task under rule 353. He has to consider the new material together with the old and make two judgements. First, whether the new material is significantly different from that already submitted, on the basis of which the asylum claim has failed, that to be judged under rule 353(i) according to whether the content of the material has already been considered. If the material is not "significantly different" the Secretary of State has to go no further. Second, if the material is significantly different, the Secretary of State has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further asylum claim. That second judgement will involve not only judging the reliability of the new material, but also judging the outcome of tribunal proceedings based on that material. To set aside one point that was said to be a matter of some concern, the Secretary of State, in assessing the reliability of new material, can of course have in mind both how the material relates to other material already found by an adjudicator to be reliable, and also have in mind, where that is relevantly probative, any finding as to the honesty or reliability of the applicant that was made by the previous adjudicator. However, he must also bear in mind that the latter may be of little relevance when, as is alleged in both of the particular cases before us, the new material does not emanate from the applicant himself, and thus cannot be said to be automatically suspect because it comes from a tainted source. 7 The rule only imposes a somewhat modest test that the application has to meet before it becomes a fresh claim. First, the question is whether there is a realistic prospect of success in an application before an adjudicator, but not more than that. Second, as Mr Nicol QC pertinently pointed out, the adjudicator himself does not have to achieve certainty, but only to think that there is a real risk of the applicant being persecuted on return. Third, and importantly, since asylum is in issue the consideration of all the decision-makers, the Secretary of State, the adjudicator and the court, must be informed by the anxious scrutiny of the material that is axiomatic in decisions that if made incorrectly may lead to the applicant's exposure to persecution. If authority is needed for that proposition, see per Lord Bridge of Harwich in Bugdaycay v SSHD [1987] AC 514 at p 531F. 11 First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return: see §7 above. The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting-point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.”

APPLYING THE TESTS TO THE DECISION LETTERS 53. I start by emphasising that it is only the first decision which was before me for judicial review. The relevance of the second decision is that the SSHD relies on it to show that any failure to consider the position of the Claimant’s wife AM would have made no difference. The first decision 54. In my judgement the application to revoke the deportation order put forward a serious case which relied on some evidence of potential substance. The following strands of the claim were ones which, if accepted, showed significant changes since the original decision, and since the AIT decision; a. The marriage of HM to Miss AG. In the absence of some evidence that the marriage was not entered seriously, or that they were not a genuine couple, that must be seen as a substantial new fact since the original decision. After all, getting married can be the best way of showing those who doubt the commitment of one or both parties to a relationship that it really is a serious one. The AIT had doubted the depth of the relationship; the fact that they had now married was at the very least a new fact requiring serious consideration, and which if true could cast doubt on whether the AIT’s conclusions still held good. I am comforted in that view by the fact that it was expressly conceded before me by Mr Karim for the SSHD that there would be interference with the private and family life of the Claimant and of AG (and there was no suggestion that their marriage was anything other than genuine). b. Whether or not the GP’s letter of 17th December 2009 had reached the decision maker, it is apparent from the application that the SSHD knew that the GP was concerned about what would happen to her treatment if she relocated. The application gave some detail of her condition. c. The Claimant had been performing voluntary work (I regard this as of no great significance on its own). 55. The decision letter rejects the arguments relating to Mrs AM. But it does so on this basis (see paragraph 18 set out above) that the nature of the relationship had been considered by the AIT. But that was not the right approach: the question was whether the evidence of what had happened since would lead one to consider that the relationship was now such that her Article 8 rights, and his Article 8 rights as a consequence of his relationship with her, had to be addressed as well. The AIT had expressly found that such a relationship did not exist at the time of the appeal. The SSHD had to decide if it now did so of the basis of the evidence before him, and if it did, then had to address the effect of his removal on her private and family life (whether she stayed here or went with him), and of the effect on his and her private and family life of any reasonable refusal by her to leave the UK. 56. In paragraph 20 the SSHD seeks to argue that if she chooses not to relocate to Malawi, that will be her decision, and that any split in family life would not be attributable to the SSHD. That is a seriously flawed piece of reasoning. On any reasonable view, the only reason for any question of her removal to Malawi arising is the SSHD’s decision to deport HM. If it is reasonable for her not to follow him, then her decision not to do so will be a reasonable response to his being deported. The causative nexus between the SSHD’s decision and her ceasing to live with HM would be clear, obvious and unbroken. It is also impossible to reconcile this argument with the SSHD’s stance before me that it was accepted that the decision would cause an interference with the Article 8 rights of both of them. The fact is that the SSHD has been by no means consistent on this point, even within the decision letters themselves. In the case of this decision letter, it actually accepts in another passage that the two of them had established a private and family life in the UK- see paragraph 26. 57. There is no discussion at all in the decision letter of any ties which AM has to the UK, apart from her citizenship. 58. As to her medical treatment, it relied on the AIT’s findings. As noted above, the findings of the AIT in her case deal only with whether treatment and medication were available, and not with its cost. In the real world, accessibility to medical treatment (including medication) requires both that it is potentially available and that it is affordable by the patient concerned. It is not enough to refer to something being available at some cost; for example, a prescription costing £5 on each occasion may be affordable by the patient in question whereas one costing £100 on each occasion may not. That is especially true in the case of those, like AM, who are on a course of treatment, and especially those like her who are obliged to take several medicines. The AIT’s findings deal with the first issue of potential availability in her case , but not with the latter issue of affordability, beyond noting that some cost could be involved. It is hard to imagine anyone considering the case of a person who requires sustained treatment for serious conditions reaching a view on whether a move to a much less developed country would be reasonable, without exploring the issue of the costs of medication. There is nothing in the decision which deals in an adequate manner with this important topic. 59. The above matters would be enough to show that that the decision was flawed. But there is also a fundamental confusion in the decision about how Article 8 is to be approached. Paragraph 22 concludes that there would be no interference with the claimant’s family and private life. Paragraph 23 then states that even if there were, the SSHD is “……..satisfied that any interference, were it to be accepted would in accordance (sic) with the relevant legislation and the UK Border Agency’s published policies in pursuit of the permissible aim of the prevention of disorder and crime the maintenance of an effective immigration control. (sic)” 60. But at paragraph 17 the letter states that “ While it is accepted that your client has established family and private life in the United Kingdom it is not accepted that the decision to deport gives rise to any interference with your client’s family and private life.

Article 8 of the ECHR

does not guarantee a person or their family the right to choose to live in the United Kingdom. A decision will only lead to interference with private and family life where it is considered unreasonable for family and private life to be continued elsewhere” 61. In my judgement the SSHD has confused and elided two different concepts a. whether the effect of the decision to deport would give rise to an interference with a person’s private and family life, and b. if so, whether that interference would render the removal a disproportionate use of lawful immigration controls. (cf Sedley LJ in VW(Uganda) above at paragraph 31.) 62. As Sedley LJ made clear, the severity of the interference (including the reasonableness issue) goes to the second question. Indeed at the hearing before me, counsel for the SSHD accepted that the SSHD had addressed the second question in those passages where he was actually purporting to answer the first one. 63. Before me, it was expressly conceded by Mr Karim for the SSHD that there would be interference with the private and family life of the Claimant and of AM (and there was no suggestion that their marriage was anything other than genuine). It follows therefore that the issue is not be whether there would be interference, but whether it would be disproportionate. I shall discuss below whether the SSHD applied that approach. 64. I therefore conclude that the first Decision Letter was seriously flawed in its treatment of Article 8 insofar as it concerned the effect of events since the AIT decision so far as their relationship was concerned, and in particular in its treatment of her Article 8 rights. Of course if the letter was flawed about her rights, then it follows that it is flawed about the effect of the removal on his relationship with her, which, it is now conceded merits consideration for protection under Article 8 and the testing of proportionality by, inter alia, application of the VW(Uganda) approach to the severity of the interference in question.... 65. For completeness, I would add that I do not consider that the decision letter revealed other flaws in its consideration of the effects of his medical condition, or about his voluntary work. 66. I am also asked to consider whether the SSHD was justified in describing the application as “clearly unfounded.” As noted above, that is not a simple synonym for “rejected” or even “unfounded.” The SSHD gives no reasoning whatever for his conclusion. Mr Karim invited me to consider the decision letter as a whole. If I adopt that approach my conclusions above have the effect that this decision by the SSHD cannot stand. 67. Even if I had not reached the conclusions noted above, I would still have found against the SSHD on this ground. A section 94(2) certificate does not follow automatically from the rejection of a claim. In this case the application was based in part upon significant evidence which had arisen since the AIT hearing, and which, if accepted (as it actually was), had to affect the continued acceptance of the AIT’s view that there was no close relationship between the Claimant HM and his now wife AM. If the SSHD thought that it was clearly unfounded, then he had to say why he formed that conclusion. I also regard his decision as irrational. It is very hard to see how any reasonable SSHD could have formed the view that the application was clearly unfounded. 68. As appears below, I have concerns about the original recommendation for deportation made in the Crown Court. However they have played no part in my conclusions set out above. 69. I do not accept the arguments put forward by the Applicant about Omojudi. In that case Omojudi when aged 27 in 1989 was sentenced to a total of four years imprisonment for theft, conspiracy to defraud and other offences of dishonesty. After being granted indefinite leave to remain, he then carried out a sexual assault when in a position of trust as a housing officer, and was sentenced to another 15 month’s imprisonment. He was subsequently convicted of an excess alcohol offence and banned from driving for 3 years. The European Court of Human Rights was critical of the weight given in that case to his pre ILR offending. The Claimant here seeks to argue that convictions occurring before the grant of the previous leave to remain cannot be taken into account. In my judgement there is nothing in the Omojudi decision which establishes any principle depriving such convictions of relevance if one is looking at the overall picture. One may test that: assume that X had three convictions in 5 years before being given indefinite leave to remain. Suppose that the view is taken at that stage that X has put his criminal past behind him. However, having got leave to remain, the confidence in his rehabilitation turns out to be misplaced, for he then commits another three offences in the next 5 years.(And- as will almost certainly be the case, none of the six will be spent within the terms of the Rehabilitation of Offenders Act 1974.) When his deportation is being considered, he can in my view only be treated as a man with six previous convictions. To treat him as a man with three would be false and misleading. Indeed the fact that he went on to commit three more after the grant of ILR is patently a matter which goes to the weight which can attach to the earlier decision. Now it may well be that the weight to be given to earlier convictions will be less, perhaps even substantially reduced; or that the fact that ILR was subsequently granted shows that they did not generate much concern, but not more than that. 70. Where I do agree with the Claimant is that the offences in the Omojudi case, both before and after the grant of ILR were far more serious than the Claimant’s and an argument of some force can be developed on weight that the facts of the Omojudi case put into perspective the much less serious offending by this Claimant. However weight is a matter for the decision maker and not for me as a judge on judicial review. 71. Given my conclusions about the first decision letter, it is not strictly necessary for me to deal with the second decision. However given the fact that it was fully argued before me, I shall express my conclusions. The second decision 72. Of course by the time this decision was reached more material had been put before the SSHD, and in particular the two letters from AM’s general practitioner. At my request I was also provided with copies of the responses from the Foreign and Commonwealth Office to the SSHD’s Country of Origin Information Request about the availability of named drugs (see paragraph 18 of the Decision Letter). They are brief in the extreme and are quoted almost verbatim in the second decision letter. 73. This second decision makes the same error as the first decision on the issue of the nature of the relationship- see paragraph 16. It rejects the Article 8 claim based on the existence of the relationship, on the basis (see paragraph 18 set out above) that the nature of the relationship had been considered by the AIT. But that was not the question: the question was still whether the evidence of what had happened since then was such that the relationship was now one that her Article 8 rights had to be addressed as well, and whether the effect of a removal on the relationship would affect his Article 8 rights also. The AIT had expressly found that such a relationship did not exist at the time of the appeal. The SSHD had to decide if it now did so, and if it did, then she had to address the effect of the removal on AM and on HM in that context. 74. As to the issue of the medical treatment available to AM, the decision looked at it from the point of view of Article 3 (see paragraph 18). It then addressed the issue in the context of Article 8 (paragraphs 20-21). There is nowhere in the decision which considers whether the drugs required by AM would be available at a cost which it would be reasonable for her to pay. The expert evidence before the SSHD from the General Practitioner is that a failure to obtain the medicines required would be “ very injurious to her health.” The earlier letter from her GP advised that “ ….this would be very inadvisable for (AM)s health.” In my view the topic of her obtaining treatment for very serious conditions went to the heart of the issue of whether it was reasonable for her to relocate from the UK to Malawi. I am quite unable to conclude that the discussion in paragraph 18 is adequate. 75. It is of course correct that in the context of an Article 3 claim, the fact of a significant disparity between the medical facilities available in the UK and those in Malawi is insufficient to found a claim. It is perfectly possible to have a case where an Article 3 claim would fail, but an Article 8 claim succeed. After all, there may be significant effects felt on a person’s private or family life from a lack of adequate medical treatment even though that person cannot be said to be enduring inhuman or degrading treatment, .and such concerns would be perfectly properly taken into account by a spouse (especially an unwell one) deciding whether or not to relocate to another country . 76. The second decision also relied on the conclusions of the Tribunal on her medical treatment available in Malawi. With respect I do not see how the SSHD could do so. Unlike the SSHD the AIT had no expert evidence put before it on the subject of her medical conditions or their treatment, and it had no evidence at all of whether the drugs she required were available at a reasonable cost. This was a matter where the AIT’s conclusions were of little help to the SSHD. 77. The second decision is also affected by the confused thinking about the difference between (a) whether there would be any interference and (b) whether any interference would have a disproportionate effect. 78. One may see that by comparing paragraphs 15, 24 and 29: Paragraph 15 states that “While it is accepted that your client has established family and private life in the United Kingdom it is not accepted that the decision to deport gives rise to any interference with your client’s right to a family and private life.

Article 8 of the ECHR

[2010] EWCA Crim 1081

which provides an excellent account of the law on recommendations for deportation in the Crown Court over the years. The recommendation here was made a few weeks before the relevant provisions of the UK Borders Act 2007. Until that time, the leading authorities on recommendations for deportation for no EU citizens were R v Nazari [1980] 71 Cr App Rep 87, R. v. Bouchereau

[1987] QB 732

and R v Carmona [2006] 2 Cr App Rep(S) 662. Boucherau is actually a case about EU citizens but it is helpful in interpretingNazari. 84. In Kluxen Thomas LJ explains the new legislation thus at paragraph 5- 8. “5 The relevant provisions of this Act were brought into force on 1 August 2008 by the United Kingdom Borders Act 2007 (Commencement No.3 and Transitional Provisions) Order 2008 (2008 SI No.1818). They apply to all convicted persons who are not British citizens, whether they are citizens of the EU or not. 6 Section 32 (5) provides that the Secretary of State must make a deportation order in respect of a "foreign criminal" unless one of the exceptions in section 33 (to which we refer at paragraph 8 below) applies. Section 32(1) defines a "foreign criminal" as a person who is not a British citizen, is convicted in the United Kingdom of an offence, and "to whom Condition 1 or 2 applies". Condition 1, defined in section 32(2), is much the more likely to arise in practice, and is the condition that applies in the cases of all three appellants. It is that "…the person is sentenced to a period of imprisonment of at least 12 months". By section 38(1)(c) imprisonment for this purpose includes detention. 7 A custodial sentence of at least 12 months must attach to a single offence before Condition 1 applies. This is because section 38(1)(b) provides that Condition 1 does not apply to "…a person who is sentenced to a period of imprisonment of at least 12 months only by virtue of being sentenced to consecutive sentences amounting in aggregate to more than 12 months". (The emphases are ours). In our judgement, the last four words of this extract must be read as meaning "12 months or more". Such a reading would avoid an inconsistency with the words 'at least' in section 32(2) and earlier in section 38(1)(b). 8 The five exceptions within section 33 include cases where the removal of the "foreign criminal" pursuant to a deportation order would breach his rights under the European Convention on Human Rights, or the United Kingdom's obligations under the Geneva Convention relating to the Status of Refugees; where the Secretary of State thinks that the "foreign criminal" was under 18 on the date of conviction; and where specified orders under the Mental Health Act, 1983 (including orders under section 37) are in force in respect of the "foreign criminal".” 85. The “Nazari” test is (see p 95 and paragraph 12 of Kluxen) "First the Court must consider…..whether the accused's continued presence in the United Kingdom is to its detriment. This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records… The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation…". 86. The Court of Appeal in Kluxen went on to say at paragraph 27 In our view it will rarely be that either test is satisfied in the case of an offender none of whose offences merits a custodial sentence of 12 months or more. An offender who repeatedly commits minor offences could conceivably do so, as could a person who commits a single offence involving for example the possession or use of false identity documents for which he receives a custodial sentence of less than 12 months (as in Bennabas above). But we repeat that such cases will be rare; and we observe that even if a court makes no recommendation for an offender's deportation, the Secretary of State may nevertheless deport him if he deems this conducive to the public good.” 87. Perusal of the learned judge’s sentencing remarks shows that he did not address the Nazari test, but recommended deportation “…..because the time you have given this country has not been positive or productive” 88. Thus, the issue of detriment was never addressed by the judge. I have some sympathy for the SSHD, who took at face value a recommendation for deportation as being lawfully made when there had been no appeal against it. But it is plain that it did not accord with the relevant test, as counsel for the SSHD conceded before me. That being so, when this matter is reconsidered, it would seem to me very unwise that the SSHD should treat this as a recommendation for deportation to which weight would attach. Further, when she reconsiders both decisions, she will have to do so in the light of current practice on recommendations for deportation. 89. I emphasise that my conclusions on the deficiencies in the recommendation for deportation have played no part in my consideration of the merits of the judicial review application. I have referred to them only so as to give guidance as to this aspect of the future reconsideration of the Claimant’s application to revoke the deportation order or of any other related application by him or by AM. FUTURE CONSIDERATION 90. I have been critical of the decisions made by the SSHD. I must emphasise that nothing in this judgement is intended to indicate what the outcome of any redeterminations might be. The only indications I should give, apart from saying that they should be made in accordance with the law, are a. that the SSHD should not follow the example of the AIT in criticising past sentencing decisions on whether or not the Claimant should have lost his liberty. b. while the views on the criminality of the Claimant of the sentencing judge are of course relevant and will attract the weight to which the SSHD thinks they are entitled, no weight should be attached to the fact of the recommendation for deportation. ORDER OF THE COURT 91. I invited submissions from Counsel on the appropriate orders to be made in the light of this judgement, which was distributed in draft form, and to correct any typographical errors or other infelicities of expression. I also asked for submissions on the terms of any Order. I am grateful to them for their submissions. 92. I was asked by both Counsel to make an Order in the following terms a. The Defendant’s decision letters dated 21 December 2009 and 3 June 2010 be quashed b. The Defendant shall make a fresh immigration decision, as defined under s82(k) of the Nationality, Immigration and Asylum Act 2002, as soon as reasonably practicable. c. The Defendant pay the Claimant’s costs, to be subject to detailed assessment if not agreed. d. There be a detailed assessment of the Claimant’s Legal Services Commission costs. 93. There was actually no application before me in repect of the second decision. Mr Jagadesham submits that I have the power to quash it, and has referred me to the judgement of Schiemann LJ in R(Turgut)v Secretary Of State For Home Department

[2000] EWCA Civ 22

. The relevant passage reads: “What quite often happens is, that although the application for permission is in theory ex parte, the Secretary of State asks permission to put before the court evidence seeking to explain and justify his original decision. Such permission is frequently given. Sometimes the Secretary of State will seek permission to adduce evidence to the effect that he has considered the evidence filed by the applicant and that he has made a new, second, decision in the light of that evidence. Where that new decision is in favour of the applicant the case is usually disposed of by consent. Where however the second decision is to the same effect as the first decision and the applicant challenges the legality of the second decision the question then arises as to what is the proper approach of the court. Further litigation on the first decision will generally be pointless. In general it will be convenient to substitute the second decision for the first decision as being the decision challenged in the proceedings. The applicant may apply for permission to amend his application for permission so as to substitute the new decision and generally the court will grant such an application.” 94. I would refer also to the judgement of Carnwath LJ in E v Secretary of State for Home Department

[2004] EWCA Civ 49

at paragraph 43. “Of course the application of these principles will vary according to the power or duty under review; and, in particular, according to whether it is a duty to decide a finite dispute (such as that of a tribunal), or a continuing responsibility (such as that of a minister or local authority). As will be seen, this distinction is important in analysing some of the cases cited in this appeal. Furthermore, some decisions reflect the relative procedural flexibility of judicial review. While a statutory appeal is normally confined by the terms of the statute to consideration of the decision appealed against, judicial review is not so confined. An application for a judicial review of a particular decision may, subject to the Court's discretion, be expanded by amendment to include review of subsequent decisions of the same agency (see e.g. Turgut below), or even related decisions of other agencies.” 95. In my judgment it follows from those decisions that I have no general power to quash the second decision. I can only grant that relief if the proceedings are amended. I invited the further submissions of the parties. The Defendant SSHD has indicated that, in the light of the conclusions I have reached in this judgement, she has no objection to the proceedings being amended at this stage so as to enable the second decision to be quashed also. 96. Although I shall quash the second decision, I shall make no further order with regard to it, as I regard it as unnecessary to do so. As I am also quashing the first decision, the SSHD still has before her the application for revocation of the deportation order, which was the subject of the first decision. She will be bound to make it in the light of circumstances as at the date of the decision. The matters relied upon in the application relating to the second decision will have to be considered by her, together with any other relevant material. 97. I therefore make the following order a. The claim is amended to include an application for judicial review of the second decision of 3rd June 2010; b. The Defendant’s decision letters dated 21 December 2009 (including the certification under section 94(2) of the Act) and 3 June 2010 are quashed; c. The removal directions of 14th December 2009 are quashed; d. The Defendant SSHD must determine the application of the 15th December 2009 as soon as reasonably practicable, but having regard to all relevant matters obtaining as at the date of the redetermination. 98. As to costs, I order that (a) The Defendant pay the Claimant’s costs, to be subject to detailed assessment if not agreed. (b) There be a detailed assessment of the Claimant’s Legal Services Commission costs. 99. I directed that any applications for permission to appeal be made in writing in the light of the draft judgement. No application has been made to me for permission to appeal.