The Secretary of State for the Home Department v Shabaz Masih [2012] UKUT 46 (IAC)

[2012] UKUT 00046 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

Date 9 December 2011

THE IMMIGRATION ACTS

Before

MR JUSTICE BLAKE, PRESIDENT

UPPER TRIBUNAL JUDGE FREEMAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant

SHABAZ MASIHRespondent

Mr Richard Hopkin, Senior Home Office Presenting Officer for Appellant

In person for Respondent

So long as account is taken of the following basic principles, there is at present no need for further citation of authority on the public interest side of the balancing exercise. (See paragraph 11 for version with foot-notes referring to authorities; but such references will not be necessary for judges deciding individual cases).

The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals:

(a) In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place.

(b) Deportation of foreign criminals expresses society’s condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them.

(c) The starting-point for assessing the facts of the offence of which an individual has been convicted, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge.

(d) The appeal has to be dealt with on the basis of the situation at the date of the hearing.

(e) Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or licence report.

(f) In considering the relevant facts on ‘private and family life’ under article 8 of the Human Rights Convention, “for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in [this] country, very serious reasons are required to justify expulsion”.

(g) Such serious reasons are needed “all the more so where the person concerned committed the relevant offences as a juvenile”; but “very serious violent offences can justify expulsion even if they were committed by a minor”. Other very serious offending may also have this consequence.

DETERMINATION AND REASONS

[1]This is an appeal, by the Secretary of State who was the respondent to the original appeal against the decision of the First-tier Tribunal (Judge TJ Cary and a lay member), sitting at Taylor House on 24 June 2010, to allow a deportation appeal by a citizen of Pakistan, following his conviction for serious criminal offences. Permission was given on all three grounds of appeal: in short, on the basis that it could be argued that: i) the panel had not paid enough attention to the assessment of risk of re offending in the pre-sentence report [PSR]; ii) they had made an obvious mistake of fact when they said the appellant had not been convicted of any offence of dishonesty such as theft or fraud (when one of the offences for which he had last been sentenced had been burglary); and iii) they had given no reasons for finding that the appellant’s most recent convictions had not “… represented an irreversible downward spiral of offending”.

[2]The appellant was born on 5 February 1988, so is now nearly 24, and had come to this country with his family as visitors on 30 May 1998, when he was only 10; but they claimed asylum as members of the Christian minority in Pakistan shortly afterwards,. The Home Office reached no decision at all on that claim, till on 6 January 2004 they were all given indefinite leave to remain, apparently under the concession relating to families in that position.

[3]It was not long after that decision, when the appellant was only 16, that he began his criminal career. The Home Office appeal bundle does not contain, as should be standard practice, a full list of the appellant’s antecedents; so we shall adopt the summary of them by HH Judge Devaux, who at Ipswich Crown Court on 2 July 2009 sentenced him to a total of 50 months’ imprisonment, 32 for possession of class ‘A’ drugs with intent to supply, and 18 for burglary and aggravated vehicle-taking, all committed with others. The judge noted 18 offences on the appellant’s record, none resulting in a custodial sentence, but including a robbery when he was 16, and five convictions for possession of drugs; no previous conviction for burglary, but one for aggravated vehicle-taking: the appellant had never had a job.

[4]On the offences for which he was dealing with the appellant, the sentencing judge noted that he had pled guilty to sample counts of supplying class ‘A’ drugs to one named individual; but that person had been using them at the rate of £50 – 60 worth a day, and most likely resorting to crime to get the money. The judge said the appellant did not plead guilty to the burglary, though he had admitted the aggravated vehicle-taking. We have a certificate from Basildon Crown Court, from where this indictment had been transferred for sentence, suggesting that he had been dealt with “on his own confession”; but that must relate only to the aggravated vehicle-taking.

[5]This is what the judge said about the Basildon indictment: The [burglary] offence was committed with accomplices. It was planned. The occupants were present in the building and very much disturbed by you. … [The aggravated vehicle-taking to which the burglary had led] involved a high value car, £50.000, driven at high speed and dangerously. It was crashed and written off. It caused damage to a number of other vehicles. He made it clear that only the ‘totality principle’ had led him to sentence the appellant to no more than 18 months’ imprisonment on this indictment.

[6]The judge did not find it necessary to refer to the PSR, which was in short form, though clearly written by an experienced probation officer, who was well aware of the seriousness of the appellant’s offences. She noted the appellant’s history of abuse of class ‘A’ drugs since he was 15, and his assurance that he was “willing to address” it, inspired particularly by his baby-mother and their young son (to whom we shall of course return). Simply on the basis of the appellant’s previous convictions, at a time when he was still only 21, the report-writer assessed his likelihood of reconviction as ‘high’, with a ‘medium’ risk of harm to the public, since he had sold drugs outside his own circle.

[7]The panel noted, as we have done, the appellant’s criminal record and the sentencing judge’s remarks. They also noted that, though he would not be subject to automatic deportation if his removal would (under article 8 of the Human Rights Convention) be disproportionate to the legitimate purposes of immigration control and prevention of crime, account still had to be taken of the guidelines in N (Kenya)

[2004] EWCA Civ 1094

and OH (Serbia)

[2008] EWCA Civ 694

. They cited these authorities, and others on the same lines, at some length, and there is no need for us to repeat what they said: it has all recently been re-emphasized in AP (Trinidad and Tobago)

[2011] EWCA Civ 551

, which the panel noted, and in RU (Bangladesh)

[2011] EWCA Civ 651

, not published in time for them to take account of.

[8]The panel also referred to JO (Uganda)

[2010] EWCA Civ 10

, though not on its main point of interest for us, which is in the Court of Appeal’s summary at paragraph 21 of the well-known decision in Maslov v Austria 1638/03

[2008] ECHR 546

“Where the person to be deported is a young adult who has not yet founded a family life of his own, the subset of criteria identified in para 71 of the Maslov judgment will be the relevant ones. Further, paras 72-75 of that judgment underline the importance of age in the analysis, including the age at which the offending occurred and the age at which the person came to the host country. This is pulled together in para 75: for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons are required to justify expulsion; and this is all the more so where the person concerned committed the relevant offences as a juvenile.”

[9]In all, Mr Hopkin was certainly not wrong, in his very fair and well-balanced submissions, to describe the panel’s decision as both thoughtful and scholarly. They could not possibly be faulted on their review of the authorities, and they may understandably have considered themselves bound to make it as extensive as they did in the interests of the appellant, unrepresented before them, as now, as well as the public interest in this class of case.

[10]It should not be necessary however for panels dealing with such cases to carry out the review of the authorities over six pages out of the panel’s 18-page decision. What is needed, where as usual in a case of this kind there is no dispute about the requirements of the law, is to show that the basic principles have been understood, and applied to the individual facts of the case in hand.

[11]In our view those basic principles, on the public interest side of the balancing exercise, are as follows; we have set out the authorities on which they are based in foot-notes, to make it clear that there is no need for further reference to them by panels:(a) In a case of automatic deportation RU (Bangladesh)

[2011] EWCA Civ 651

and AP (Trinidad and Tobago)

[2011] EWCA Civ 551

, full account must be taken of the strong public interest in removing foreign citizens convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in the first place OH (Serbia)

[2008] EWCA Civ 694

;

(b) Deportation of foreign criminals expresses society’s condemnation of serious criminal activity and promotes public confidence in the treatment of foreign citizens who have committed them OH (Serbia)

[2008] EWCA Civ 694

;

(c) The starting-point for assessing the facts of the offence of which an individual has been committed, and their effect on others, and on the public as a whole, must be the view taken by the sentencing judge In an English or Welsh case, there should always be a transcript of the sentencing remarks in the Home Office appeal bundle: this may not be available from a sheriff court in Scotland, when the panel will need to carry out their own assessment. In either case, there should also be a copy of the indictment, and the appellant’s list of previous convictions, if any. ;

(d) The appeal has to be dealt with on the basis of the situation at the date of the hearing;

(e) Full account should also be taken of any developments since sentence was passed, for example the result of any disciplinary adjudications in prison or detention, or any OASys or licence report;

(f) In considering the relevant facts on ‘private and family life’ under

article 8 of the European Convention on Human Rights

, “for a settled migrant in our terms, someone who had indefinite leave to remain at the date of the decision under appeal who has lawfully spent all or the major part of his or her childhood and youth in [this] country, very serious reasons are required to justify expulsion” JO (Uganda)

[2010] EWCA Civ 10

;

(g) Such serious reasons are needed “all the more so where the person concerned committed the relevant offences as a juvenile” JO (Uganda)

[2010] EWCA Civ 10

; but “very serious violent offences can justify expulsion even if they were committed by a minor” Maslov 1638/03

[2008] ECHR 546

, paragraph 85 . Other very serious offending may also have this consequence.

[12]Returning to the facts of the individual case in hand, the panel were certainly wrong, as will already be clear from what we have said about ground 2, to take the view that the appellant had not been convicted of any offence of dishonesty such as theft or fraud. However, they had clearly not overlooked the burglary, since they had set out the sentencing judge’s remarks on it in full at paragraph 50, and, at paragraph 18, the appellant’s own frank admission that it had been done to order, to get hold of the cars involved in the aggravated vehicle-taking.

[13]The most that can be said is that the panel may have over-emphasized the relative importance of the drugs offence, for which the appellant had to receive a sentence in line with others dealt with at the same time; and of the burglary and aggravated vehicle-taking, on which his sentence could and had to be reduced on the totality principle. It was a bad domestic burglary, planned with others, and involving serious disturbance of people in the house, and taking two cars, the object of the burglary, no doubt with keys found inside the house, and crashing one of them.

[14]Going back to grounds 1 and 3, the panel set out in full, at paragraph 76, the risk assessment in the PSR. However, they went on to say this: There is no evidence before us to indicate whether that assessment which is almost 2 years old is still valid. If all the bulk of the Appellant’s problems in the past have been attributable to his drug use it may well be that if he continues to remain drug free there will be a corresponding reduction in his risk of reoffending.

[15]Mr Hopkin noted that the panel had expressed doubts, at paragraph 20, about the appellant’s claim that he had funded his drug habit from money given to him by his brother; at paragraph 23, they had noted that it had continued at a time when he was already with Jade Millard. Here we need to go further into the background. The appellant had since 2008 had a relationship with Jade, a British citizen born on 17 April 1990, as a result of which she had conceived (just before he was arrested for the burglary) their son Tymari, born on 6 March 2009; but they had never lived together till after the panel’s decision, when another first-tier judge released the appellant on bail, pending the present appeal by the Home Office.

[16]Mr Hopkin went on to make the point that the panel had not expressed any concluded view, in the passage cited at 13, as to whether the appellant’s crimes had been the result of drug abuse or not. However, it seems to us that, when they posed the condition “if he continues to remain drug free”, they were implicitly, but clearly accepting his evidence (supported by Jade, as far as she could, on the basis of regular visits to him in prison) that he was now off drugs – not an inevitable result of imprisonment, as everyone these days knows. They were entitled to do that (and, as it will turn out, were right on the facts to do so): the rest of what they said in this passage is a question of risk assessment, on which they were fully entitled to express themselves in terms of probabilities.

[17]There is also the consideration, whose importance was underlined in Maslov, that this appellant, was only 20 at the time of any of the offences for which he was sentenced to imprisonment. Despite his long list of previous offences this was his first experience of a custodial sentence. The impact of such a sentence on him was an important consideration.

[18]Clearly the offences for which the appellant was sentenced did represent a marked aggravation of his offending behaviour; but a first sentence of imprisonment, especially if it is as long as this one was, may have a rehabilitative effect on a young offender whose problems seemed to be linked with his abuse of drugs. The panel had evidence of his progress in prison as do we. The Secretary of State has helpfully obtained the appellant’s prison medical records before making the decision in this case. They revealed that he had regularly tested drug free during his imprisonment. They were also entitled to take account of his own assurances of reformation in the light of his sentence and his new responsibilities as a father , as they were supported by oral evidence from Jade, based on her regular visits to him in prison with their child Tymari.

[19]We are far from saying that we should have reached the same result as the panel on the evidence before them at the date of the hearing; but, that is not the test we apply to this appeal. This was a meticulously reasoned decision addressing very carefully the issue of likelihood of re-offending on which the decision maker placed reliance in the well reasoned decision letter to which we should also pay tribute. The panel did not fall into the error of treating this as the only relevant consideration but it was a very important one in the case of a young offender who has been resident here for half his life.

[20]The panel made no error of law in their self directions. The slip about no offence of dishonesty was clearly just that and the panel had well before them the true nature of the offending. Their conclusions on proportionality and the overall balance of the competing considerations were ones they were entitled to reach on the evidence.

[21]The appellant understandably did not appreciate the issue of law involved; but we heard what he had to say for himself, and he did so most effectively, not only by assuring us that he had put crime and the drugs that had led him to it behind him, but by producing a very recent (7 December) letter from his probation officer, making it quite clear that he had tested negative for illicit drugs ever since his release, and co-operated well with that service so far in their efforts to help him and set him on the road to finding work. This information supports the information before the panel. It would have been of much importance if we had decided to remake the decision for ourselves; but, from what we have already said, there is no basis to set aside the panel’s decision and it will remain undisturbed.

[22]We hope that this will be some encouragement for the appellant to remain drug free, avoid criminal conduct and to do his best to find work and provide for himself and his family. We repeat what we told him at the conclusion of the hearing. He should be well aware that, if he committed any further significant offence, whether punishable by 12 months’ imprisonment or not, then it would be fully open to the Secretary of State to take fresh proceedings to deport him. Since the appellant in such an eventuality would not have the benefit of youth and a first experience of a custodial penalty, and would have betrayed the opportunity for rehabilitation offered him by society and the trust placed in him by his own family, an appeal against such a decision on human rights grounds would be unlikely to succeed. We trust that a record will made of these comments by the Secretary of State. Upper Tribunal Judge Freeman Upper Tribunal Immigration and Asylum Chamber

Cited in 12 later judgments

and 3 more of the most senior