HJ (Removal, Public Good, Immigration Rules) Jamaica [2004] UKIAT 00162 (16 June 2004) [2004] UKIAT 00162

UKIAT
HJ (Removal, Public Good, Immigration Rules) Jamaica [2004] UKIAT 00162 (16 June 2004)
[2004] UKIAT 00162 · 2004-06-16
[1]The appellant is a citizen of Jamaica who appeals to the Tribunal against the decision of the Secretary of State made on 7 July 1998 to make a deportation order against him pursuant to section 3(5)(b) of the Immigration Act 1971.[2]The appellant arrived in the United Kingdom on 9 July 1992, aged 24, and was granted six months leave to enter as a visitor for the express purpose of visiting one of his mother's cousins. He had spent his childhood and the first six years of adulthood in Jamaica. During his period in Jamaica, he had fathered two children, one of whom lived with the child's mother and the other with his own mother.[3]The appellant did not leave the United Kingdom at the expiration of the grant. On 23 March 1993, at a time when the appellant had no right to remain in the United Kingdom, he applied for leave to remain following his marriage to a British citizen, Yvonne Stephenson. He was granted leave to remain until 23 March 1994 under the Immigration Rules. At the expiration of the initial twelve months grant, he was given indefinite leave to remain in the United Kingdom as a spouse.[4]The appellant was arrested on 13 February 1995 for the offences that subsequently resulted in his conviction, on 14 July 1995, at Snaresbrook Crown Court, on three counts of supplying cocaine, a Class A drug, and being concerned in offering to supply cocaine, a Class A drug. At that time he was unemployed. He was sentenced to five years imprisonment concurrent on each count. His Honour

Judge Howarth, when sentencing the appellant, said:

"As you now know, those who sell crack cocaine on the street receive substantial prison sentences. You were selling crack cocaine in what I have described as a crack cocaine exchange; a place where people came to buy and sell crack cocaine. "
You pleaded guilty to three offences of supplying crack cocaine on two separate consecutive days. The reason why you sold crack cocaine was because you hoped to make some money out of it."[5]The sentencing judge took into account the fact that the appellant was a man of good character, had pleaded guilty and had expressed genuine regret. His application for leave to appeal against the sentence was refused by the Court of Appeal on 12 December 1995, suggesting that the judge's approach to sentencing was proper.[6]The appellant was released on 29 September 1997 on parole licence, having served one half of his sentence. Immediately prior to his release, on 15 September 1997, he was notified of his liability to deportation in the light of his conviction. By this time Immigration Officers had visited his wife who had stated that she was estranged from her husband. About seven months later, in April 1998, the appellant committed offences of criminal damage and assault for which he was subsequently sentenced, in October 1998, to two months imprisonment. That conviction caused him to be in breach of his parole licence for which he was sentenced to a further six months imprisonment to run consecutively, a total of eight months imprisonment in all. In the course of 1998, his wife divorced him.[7]On 7 July 1998, a few months before his second set of convictions, the Secretary of State made a decision to deport the appellant on the basis that his deportation was conducive to the public good. The decision was supported by a Refusal letter of 19 January 1998 and gave rise to a right of appeal directly to the Tribunal which the appellant duly exercised by notice on 16 July 1998.[8]At that time, almost nothing could be said in favour of the appellant's continued presence in the United Kingdom:(a) He had breached the terms of his original leave to enter.(b) He had committed a serious offence involving the abuse of a Class A drug.(c) He had breached the terms of his parole licence.(d) He had committed a second offence, albeit of a less serious nature.(e) The divorce from his wife had swept away the very reason why he had been granted leave to remain in the United Kingdom.(f) He had far stronger reasons to return to Jamaica than he had to remain in the United Kingdom. Not least were the two children he had there, one of whom was being cared for by his mother.[9]Shortly before his conviction in October 1998, the appellant commenced living with Miss Nourrice, whom he had met during the subsistence of his marriage to Miss Stephenson. In January 1999, a daughter was born of this relationship.[10]It was not until 23 September 2003 that the Secretary of State issued the explanatory statement that was a necessary step required before the appeal could be heard. Having been listed before the Tribunal on 29 March 2004, the appeal before us was heard on 20 May 2004.[11]In reaching his conclusion, the Secretary of State considered his own guidance set out in DP2 – 93. From 2 October 2000, (the introduction of the ECHR into English domestic law), the Secretary of State was not permitted to make a deportation order if the appellant's removal would result in a violation of his human rights. Subject to that, paragraph 364 of HC 395, the Immigration Rules, set out the requirements that the Secretary of State was required to take into account before deciding to make a deportation[12]The papers before the Secretary of State included a report from the appellant's probation officer, Mrs Selina Knight, dated 19 August 1998. The report indicates that the appellant suffers from a Sickle Cell condition as well as a recently diagnosed genetic illness. The report continues:
"Probation records indicate that [the appellant] had some difficulty coming to terms with his period imprisonment because he considered that it was not his fault that he committed the offences. By that time he had a debt that he was unable to repay and the offence was the only solution to his problem. During supervision he has explored the offences, their consequences to others and the effect they may have had on his own life. He does not present a high risk to the community of re-offending, nor as a dangerous person. However, his depression may indicate that there is underlying anger, but given all the problems he has been experiencing since his release, and the uncertainty of his current immigration status, the depression may be as a reaction to them."
[13]The material decision was made on 7 July 1998. This was probably the lowest point of the appellant's life. The Tribunal is able to take into account post-decision material insofar as it sheds light on the decision of the Secretary of State. The fact, for example, that he has not re-offended can properly be taken into account in assessing the risk of re-offending.[14]In a skeleton argument submitted on the appellant's behalf for the purposes of this appeal, it is not surprising that particular attention is paid to the fact that more than five years has elapsed since the decision made by the Secretary of State and the provision of an explanatory statement in September 2003. During those five years, it is apparent that the appellant has not re-offended, has commenced a relationship and has had a daughter. It is argued that the lapse of five years is inconsistent with the Secretary of State's stated position that it would be conducive to the public good to deport him. Furthermore, it is said that the Secretary of State "has acquiesced in the appellant demonstrating over those five years that his deportation is not necessary for any other possible purpose than the seriousness of the drugs offence for which he was sentenced in 1995".[15]Mr Jorro submits that although five years imprisonment indicates a serious offence, it is not of a level of seriousness that renders deportation conducive to the public good by reason of the seriousness of the offence alone. In support of his submissions, he referred to a number of decisions of the Tribunal in which appellants have successfully argued that deportation was not the right course.[16]In Morgan (15616), (Mr JRA Fox, chairman), the decision to remove was made in February 1997 following a conviction in April 1995 of two counts of being knowingly concerned in supplying crack cocaine in October 1994 to undercover police officers. Morgan was sentenced to 4 years imprisonment. He was unemployed when arrested. He lived in rented accommodation with his wife and one child. He pleaded guilty.[17]In Rodney, (00 TH 00750) (Mr JA O'Brien Quinn QC, chairman), the Secretary of State made a decision in October 1997 following a conviction in December 1994 on four counts of supplying cocaine for which he received two terms of 3 years imprisonment and two terms of 4 years imprisonment to run concurrently. His recommendation for deportation was subsequently quashed. He was released after serving approximately half of his sentence on 28 March 1996. He had married a British citizen in 1993 and lived together with the children of that marriage and two children of a previous relationship. His application for leave to remain as a spouse of a British citizen was refused. He was unemployed when the Secretary of State made his decision and had only a limited work record. When the Tribunal considered his appeal, he had commenced business with his partner and had three employees in a restaurant. He had lived in the United Kingdom for almost ten years. The Tribunal concluded that the Secretary of State had failed to discharge the burden upon him that the deportation of the appellant was conducive to the public good.[18]Although we were referred to the decision of the Tribunal chaired by HH Judge Cotran in Linton (22550) , we are not satisfied that the judgment contains any adequate reasoning that led to the appeal being allowed.[19]Finally, we were referred to the Tribunal's decision in Kwaku (00TH 01651) (Mr D. K. Allen, chairman) in which a citizen of Ghana was apprehended in March 1996 with attempted importation of cocaine with an estimated street value of over £50,000. He was convicted on 22 July 1996 and sentenced to five years imprisonment. He was released having served approximately half of his sentence. He was regarded as someone unlikely to re-offend. The Tribunal considered the decision quite finely balanced but found the appellant's deportation would not be conducive to the public good by reason of the effect this would have on the break-up of his relationship with his partner and the impact this would have upon the welfare of the child of a relationship.[20]In each of these cases, the Tribunal decided that the Secretary of State had failed to establish that deportation was conducive to the public good. In other words, these were cases in which the mere fact of conviction for offences relating to the importation of cocaine was not sufficient in itself to merit deportation. Mr Jorro, who appeared on behalf of the appellant, did not rely upon these cases as establishing that the fact that the appellant was sentenced to 5 years imprisonment for drug-related offences establishes that deportation is not be deemed conducive to the public good. He relied upon them simply as establishing the deportation was not automatic.[21]Mr Jorro relied upon the appellant's good conduct since his release from the second term of imprisonment. In that time, he submitted the appellant had established a stable relationship which had resulted in the birth of a daughter. His partner works whilst the appellant looks after their daughter. Since April 1998, some six years ago, the appellant has not misbehaved.[22]We accept that this is not the case where the seriousness of the offence is so great as to merit automatic deportation. We do not consider that the cases set out above do more than establish this principle.[23]For the reason we have set out above, when the Secretary of State came to make his decision on 7 July 1998, it seems to us that, at that stage, it was conducive to the public good to deport the appellant. The fact that it was then conducive to the public good to deport him cannot be changed, retrospectively as it were. It remains the fact that the appellant should properly have been deported in 1998. Furthermore, in July 1998, the Secretary of State could not reasonably have assumed that the appellant would commit further offences. Instead, we think that he was obliged, in the absence of other material, to assume the appellant would not re-offend in future. Subsequent events have done no more than establish as fact those matters that the Secretary of State would have presumed. The assumption of future good behaviour would not, therefore, have rendered his deportation non-conducive.[24]Mr McGirr, who appeared on behalf of the Secretary of State, accepted that the failure to provide an explanatory statement until December 2003 was an error on the part of the Secretary of State and was an act of maladministration. He was only able to explain that restructuring on the part of the Home Office had resulted in the file being misplaced. He readily accepted that this was not an adequate justification for the delay. Nevertheless, the delay acted to benefit the appellant because it provided him with an opportunity to establish as fact that which in 1998 could only be conjecture. But it did no more.[25]Mr McGirr also submitted that the appellant has been aware of his immigration status throughout the entire period since the decision to deport him was made. He had been served with the notice of an intention to deport him whilst he was still in custody for the first set of offences and, amongst the papers, is an acknowledgement that he had been so served. At all times, he was well aware of his uncertain immigration status. He was subsequently involved in another incident which resulted in a further term of imprisonment.[26]There are a number of principles that appear to us to emerge from this material:(a) The appellant has never had any reasonable expectation since 15 September 1997, when he was notified of his liability to deportation in the light of his conviction, that his right to remain would not be terminated. His immigration status was most fragile.(b) Nothing has been done by the Secretary of State to give the appellant a reasonable expectation that i. his leave to remain would not be terminated; ii. his future good conduct in the United Kingdom would result in the suspension of the deportation process.(c) There is no principle in law or in equity that establishes that an error on the part of the Home Office in processing a claim should result in an appellant benefiting from the Home Office's default by the grant of leave to remain that the appellant would not otherwise have merited.(d) There is no estoppel that operates to prevent the Secretary of State from now relying on the factors on which he was properly able to rely in July 1998.(e) There is no principle that the Home Office should be punished for its delay by the grant of an adverse decision.(f) The appellant has not been prejudiced by the delay in that he has merely had the advantage of remaining in the United Kingdom for a longer period than might otherwise have happened.(g) The relationship with the appellant's girlfriend (including the birth of their child) has taken place during a period when the appellant knew his was liable to deportation.(h) It must be a private matter for the couple to decide whether they wish to continue that relationship in Jamaica, a country with which the appellant still has links including the presence of two children by previous relationships as well as other family or, at least, his mother.[27]The grounds of appeal and skeleton argument, clearly anticipating arguments such as those expressed in the preceding paragraph, seek to criticise the Secretary of State for the delay and argue, albeit obliquely, that the factors that were "conducive" in July 1998 have since been negatived to a point where the Secretary of State can no longer rely upon them.[28]It is argued that the Secretary of State can hardly rely on the appellant's deportation being conducive to the public good where he himself has delayed in advancing the public good to a point where his present departure would serve no good. We would agree that, where the Secretary of State has unequivocally acted contrary to his professed claim that it is for the public good for an appellant to be deported, the decision to pursue the process may be Wednesbury unreasonable. In the present case, however, the Secretary of State has made no such assertions expressly or by implication. In our judgment, to lose the file as a result of a departmental re-organisation cannot be construed as an implied recognition of the appellant's right to remain.[29]Even more tortuously, the appellant argues that the Secretary of State has "acquiesced in the appellant demonstrating over those 5 years that his deportation is not necessary…" We do not see any role for a principle of acquiescence in the context of deportation or, indeed, in immigration control generally. It implies that the Secretary of State knew that the appellant was developing his life in the United Kingdom and that he then stood by and let it happen in circumstances where common justice should not permit the Secretary of State to benefit. It is rather as if the appellant were to have committed himself to obligations under a long-term contract (perhaps a mortgage), in reliance on Home Office inactivity, such that it would be inequitable to require the appellant to lose out on the contract by requiring him to leave. In neither case can we see a justification for any principle of acquiescence. Put shortly, if the decision of the Secretary of State was correct at the time it was made, it cannot cease to be correct through his subsequent inactivity, even to the point of acquiescence.[30]For these reasons, we are satisfied that, when the Secretary of State came to make his decision in July 1998, the appellant's removal was conducive to the public good, his decision was lawful and was the result of a correct evaluation of the Rules, his own policy and the applicable law. We are unable to identify any principle that deprives the Secretary of State of the right to maintain his decision of July 1998. Decision: The appellant's appeal is dismissed. Andrew Jordan Vice President 8 June 2004

order

364. 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. 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 United Kingdom;(iii) strength of connections with the United Kingdom;(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 representations received on the person's behalf.