BT (Deportation) Ethiopia [2002] UKIAT 06378 (03 February 2003) [2002] UKIAT 06378

UKIAT
BT (Deportation) Ethiopia [2002] UKIAT 06378 (03 February 2003)
[2002] UKIAT 06378 · 2003-02-03
[1]BT (Deportation) Ethiopia [2002] UKIAT 06378 TH35562-2002 IMMIGRATION APPEAL TRIBUNAL Date of hearing: 28 January 2003 Date Determination notified: 03 February 2003 Before DR H H STOREY (CHAIRMAN) MRS W JORDAN Between Secretary of State for the Home Department APPELLANT and BT RESPONDENT DETERMINATION AND REASONS The appellant, the Secretary of State, has appealed with leave of the Tribunal against a determination of Adjudicator, Mr P V Ievins, dismissing the appeal against the decision of the Secretary of State to make a deportation order against the respondent, a national of Ethiopia, under the provisions of section 3(5)(a) of the Immigration Act 1971. Mr A Kaihiva of Counsel instructed by Sooni Ayoola & Okri Solicitors appeared for the appellant. Mr S Ouseley appeared for the respondent. To avoid confusion the respondent is hereafter referred to as "the claimant".[2]The Tribunal has decided to allow this appeal.[3]The adjudicator concluded that there were compassionate circumstances justifying him allowing the appeal. These consisted in the fact that the claimant had come to the UK in 1993 accompanied by a female relative and that he and his younger brother were then abandoned here. They were looked after by a social services department. Although he counted against the claimant that he had committed criminal offences, he found these "were not as serious as some" and that these had to be set in the context of the claimant being a rootless young man who had apparently been abandoned. He noted that he had no family in Ethiopia. He took into account further that by virtue of being able to prove his nationality the claimant might not be able to get back into Ethiopia.[4]The grounds of appeal contended that the adjudicator's conclusions were perverse. He had failed to attach due weight to the fact that the claimant was of an age (23) when he would be able to adapt to life in his native country. Given the factors he was required to have regard to under paragraph 364 of HC395, he had effectively allowed the appeal on the insufficient basis of the claimant having 9 year's residence in the UK and possibly not being readmitted back to Ethiopia.[5]We consider that the grounds were correct to describe the adjudicator's findings as perverse. There were perverse in two respects.[6]One was that, although correctly setting out the factors he was required to consider when conducting the balancing act under paragraph 364, the adjudicator plainly then forgot how many of these he had counted against the claimant.[7]Before looking at what the adjudicator did, we need to set out the text of paragraph 364 of HC395. This states:
"In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. [In the cases detailed in paragraph 363A] deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority. Before a decision to deport is reached the Secretary of State will take into account all relevant factors known to him including: (i) age; (ii) length of residence in the UK; (iii) strength of connections with the UK; (iv) personal history, including character, conduct and employment record; (v) domestic circumstances; (vi) previous criminal record and the nature of any offence of which the person has been convicted; (vii) compassionate circumstances; (viii) any representation received on the person`s behalf."
[8]How then did the adjudicator apply paragraph 365 to the facts in this case? He found the claimant had no ongoing or close relationship with his brother (his own evidence was he had not seen him for a year and a half) or with anyone else. Although he recognised that the claimant had been abandoned in 1993 and had then been brought up in care, he found that that did not excuse his criminal behaviour. He found he was not of good character having committed offences for robbery and offering to supply a controlled drug. He also found his prospects if released from prison in the UK (he was currently in detention again, this time under Immigration Act powers) to be poor.[9]A second respect in which his findings were perverse was the undue weight he attached to the possibility that the claimant would not be re-admitted to Ethiopia. He was perfectly entitled to count in favour of the claimant his length of time in the UK (9 years), his background as an abandoned child and as someone who was now rootless and the fact that he had no ties in Ethiopia. But he was not entitled to take into account the fact that he might not be re-admitted there at all - except insofar as problems in confirming his nationality might unduly delay implementation of his deportation.[10]There was some dispute between the parties as to whether the claimant would in fact experience difficulties obtaining acceptance from the Ethiopian Embassy in this country that he was a national entitled to re-admission. However, even assuming Mr Kaihiva is right in saying these difficulties would be insuperable, the only result would then be that the claimant`s departure would not be enforced. That is because the Home Office policy in the case of persons refused admission to their own country of nationality or residence is to return them to the United Kingdom. In such circumstances their deportation is not implemented.[11]Accepting this point, Mr Kaihiva still maintained that the adjudicator was entitled to take into account the fact that the end-result would be delay and uncertainty for the claimant. We accept that, but we do not consider this likelihood sufficed to justify allowing this appeal. Of course, if lengthy delay were encountered, resulting in the claimant being left in limbo, the Secretary of State would at some point need to take stock. But it would be erroneous to assume that the Secretary of State would not keep matters under review, since any failure to do could result in failure to comply with the claimant`s human rights.[12]Bearing in mind the preponderance of the paragraph 364 factors quantitatively and qualitatively counting against the claimant and the fact that the adjudicator attached weight to erroneous speculation about possible non-admission, we consider he should have concluded that deportation was the right course on the merits. Whether the claimant`s offences were not as serious as some, his record was one of serious criminal offences and included the use of violence. On the adjudicator's own findings, it is sufficiently clear from what he said at paragraph 25 that he believed the claimant had a propensity to re-offend and he described his prospects upon coming out of prison as poor. On the adjudicator's own findings, the claimant had no close ties in the UK. He was a young man with no apparent physical or mental disabilities that would prevent him living a relatively normal life in his country of origin.[13]In reaching our decision we have taken account of relevant case law including the case of R v Nazari (1980) 71 Cr App Rep 97 which was obliquely referred to by Mr Kaihiva. In respect of the latter, we would observe that it concerned the jurisdiction of the criminal courts to make a recommendation for deportation following a prison sentence, so it is of little direct relevance. However, insofar as this decision sets out guidelines for when deportation is to be considered appropriate, there is nothing said in that judgment which causes us to reconsider the approach we have taken in this case.[14]In reaching our decision we have also seen paragraph 364 of the Immigration Rules as requiring a purposive reading in accordance with s 3 of the Human Rights Act 1998. In our view under Strasbourg jurisprudence on Article 8, virtually identical considerations apply. Albeit having lived in the UK for 9 years having been abandoned when around 14, the claimant has no close personal or family ties in the UK. He has a history of criminal and anti-social behaviour including offences of violence. He has been found by the adjudicator to have a propensity to re-offend. It is true that upon any return to Ethiopia he would have no family ties there, but he was a young man with no mental or physical impairment. If admitted, he would not be at risk of adverse attention from the Ethiopian authorities. In such circumstances we are satisfied that the decision to make a deportation order against him did not and would not amount to a disproportionate interference with his right to respect for private and family life.[15]Although not asked to do so, we have further considered in this connection the relevance to the claimant`s case of specific Strasbourg cases relating to individuals with a history of criminal conduct in their host country. In Macdonald`s Immigration Law and Practice (5 th edition, 2001) I is stated: "Deportation following conviction for criminal offences of young men who have lived for most of their life in Europe and have few if any remaining ties, linguistic or social, with their country of origin has been held disproportionate to the legitimate aim [of immigration control] in a number of ECtHR cases".[16]Reference is then made to several Court cases ( Beldjoudi v France (1992) 14 EHRR 801 , Moustaquim v Belgium (1991) 13 EHRR 802 , Nasri v France (1995) 21 EHRR 458) and one Commission case Lamguindaz v UK (1993) EHRR 213. However, it is clear from these and similar cases that in assessing proportionality much depends on from what age the individual concerned has lived in the host country and what content there is to his essential social environment, his emotional and social circle and his family in the host country. In this case the claimant was already around 14 when he came to the UK and, as we have seen, has not maintained close personal relationships with anyone in the UK, family or non-family. There was no satisfactory evidence that he would not continue to re-offend. Thus there were and remain far fewer countervailing factors relating to the claimant`s private and family life in the UK than was so in the cases just cited. In Nasri v UK , for example, the Court had to consider the case of a deaf and dumb national of Algeria who had arrived in France when he was 14 and who had been convicted of gang rape. In deciding there was a breach of Art 8, the Court attached particular weight to the fact that the presence of his family in France was especially important not only in terms of providing a home but to prevent him lapsing into a life of crime.[17]Accordingly we are satisfied, even taking express account of the claimant`s human rights and so giving paragraph 364 a purposive reading to reflect these rights, that the decision of the Secretary of State to make a deportation order was a proportionate interference and that the adjudicator was wrong to effectively conclude otherwise.[18]Given we have concluded that the deportation of this claimant would be in the public good, it is salient we add that in our view it would not necessarily remain so if the Secretary of State – assuming no obstruction by the claimant – were to delay unduly in implementing his decision to deport. Indeed, given that the claimant remains in detention, there is more reason than in most cases to expedite matters so as to minimise the period during which the claimant is deprived of his liberty by being held in detention and to give him the earliest opportunity to re-establish himself in Ethiopia.[19]For the above reasons, this appeal is allowed. DR H H STOREY VICE-PRESIDENT