[2005] UKIAT 103
- Case title: CM (Deportation, Article 8)
- Appellant name: CM
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Jamaica
- Judges: Hon Mr Justice Ouseley, Mr Aujla, Ms C Jarvis
- Keywords Deportation, Article 8
The decision
CM (Deportation – Article 8) Jamaica [2005] UKIAT 00103
IMMIGRATION APPEAL TRIBUNAL
Date: 12 January 2005
Date Determination notified:
18 May 2005
Before:
The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
Mr P S Aujla
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Appearances:
For the Appellant: Mr F Omere, instructed by Paragon Law
For the Respondent: Ms P Ramachandran, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against the determination of an Adjudicator, Mr L A North, promulgated as long ago as 9 October 2002. The Appellant, who is a male citizen of Jamaica born in 1959, appealed to the Adjudicator against the Secretary of State’s decision in March 2002 to make a deportation order against the Appellant on the ground that his removal would be conducive to the public good. This was because the Appellant had been convicted of robbery in June 1999.
2. The Adjudicator dismissed the appeal under both the Immigration Rules and on human rights grounds. The Tribunal refused permission to appeal in November 2002 but Judicial Review of that was sought and the decision of the Tribunal was quashed by consent in an Order dated 23 September 2003 and stamped 13 October 2003.
3. The basis upon which the refusal of leave to appeal was quashed was that the Adjudicator was said to have disregarded certain evidence on the grounds that he was precluded by section 77(4) of the Immigration and Asylum Act 1999 from having regard to it. It was said to be arguable that that was an error in particular in the light of the Tribunal’s decision in SK [2002] UKIAT, 05613.
4. The application for permission to appeal therefore came back before the Tribunal, this being a Judicial Review rather than a Statutory Review case, and it was granted in a determination dated 21 October 2004 and notified on 29 November 2004. The reason for delay in the application for permission to appeal coming before the Tribunal, following the quashing of its earlier decision, does not appear from the file. It was a common but unsatisfactory feature of Judicial Review that the successful applicant might feel no urgency in notifying the Tribunal of his success and the losing Secretary of State, who had a contrary interest, might not have regarded it as his obligation to do so instead. It may on the other hand be that there was an administrative inefficiency at the Tribunal. We do not know.
5. The Appellant came to the United Kingdom in 1987 as a visitor with four weeks leave to enter and was granted a six-month extension, during which time he married and thereafter was granted indefinite leave to remain. He was divorced in October 2001; but the marriage had ended as a relationship in the early nineties; there were no children of that marriage.
6. His immigration history and his alleged offending behaviour had been interwoven to some degree. His September 1994 arrest, in connection with the search of car in which a knife and a forged fifty pound note were found, had occurred when he was sitting in the driver’s seat of a car hired by Valmore Talbot; he said that his true identity was CM, the name on a letter from British Rail in his possession. But he had been returned to Jamaica as Valmore Talbot; there he had been believed to be CM, had been returned to England, where Ms Cole, his son’s mother, had brought his Jamaican passport to the airport. The Secretary of State’s refusal letter said that he had been given leave to enter as returning resident CM, having been removed as illegal entrant Talbot. There seems to have been some connection with a Ms Talbot, and her application to enter was associated with his file.
7. He had been wrongly alleged to be a Neville Smith when arrested in 1995 for possession of crack cocaine; it was at court that he had been recognised to be CM. He was acquitted.
8. The offence which has led to the decision under appeal was committed in January 1999. The sentencing remarks of His Honour Judge Gerber in June 1999, following the Appellant’s conviction by the jury, described the offence as “very serious indeed’, “… this was a plan, in which another woman was laid as a bait in the street, got the unsuspecting victim to come to the door of the house, you drag him in, and then produce a knife, which we have seen, hold it to his throat and then proceed to rob him of all his money. Having held him for some twenty minutes, when the street is clear, he is bundled into the street without his money and threatened not to report it to the police.” He was sentenced to five years in imprisonment. No recommendation for deportation was made. He blamed the offence on drug taking and the woman who he said had instigated it. He had only one previous conviction for handling a stolen credit card, for which he had received a prison sentence.
9. The Appellant’s evidence to the Adjudicator was that he had a daughter in the United Kingdom by one woman, but he did not know where they were. He also had a son in the United Kingdom by another woman. Both children were about seven years old at the time of the Adjudicator’s hearing, combining his statement and his grounds of appeal, although other material suggests the daughter was four years older. In November 2001, in prison, he married another woman, a Jamaican national living in the United Kingdom, who has now sought leave to remain as the spouse of a person present and settled in the United Kingdom.
10. He said that he was remorseful of his past actions, wanted now to provide for his family, had room for his son to visit, was involved in a local community group, but if deported would be unable to seek entry clearance to visit his son or to maintain telephone contact. The son’s mother had been expected to attend the Adjudicator’s hearing; he did not know why she had not done so. He also had good prospects of full-time, permanent responsible employment and he had put his time in prison to good use. He spoke to his son three times a week, aspired to staying in contact and paid varying amounts of maintenance, irregularly.
11. The Adjudicator considered paragraph 364 HC 395 which provides for a striking of a balance in deportation cases between the public interest, compassionate circumstances and the aim of consistency and fairness. He also set out the appropriate approach to Article 8 ECHR, save that he erred, in the light of SK, in construing section 77(4) of the 1999 Act as confining his attention to the facts as at the date of the SSHD’s decision.
12. The Adjudicator concluded that the Secretary of State’s policy of deporting those convicted of violent offences was not wrong, that His Honour Judge Gerber’s sentencing remarks and the five-year sentence showed the seriousness of the robbery offence. It was a “particularly serious offence”. In considering the counter-balancing factors in paragraph 364 of HC 395, the Adjudicator pointed to the absence of any matters making return to Jamaica unduly difficult. This was where the Appellant had spent his formative and a significant part of his adult years.
13. There was no connection remaining with his first wife. His statements showed no continuing connection with the daughter or her mother. The Adjudicator accepted a continuing contact with the son as described above. From Jamaica, the Appellant could continue to telephone, and could seek visiting contact through entry clearance. It was significant to the Adjudicator that the son’s mother had not attended to give evidence in support. There was no evidence as to the effect on the son of any loss of or reduction in contact with the Appellant, though the son valued the fortnightly contact visits. Deportation would constitute a significant, partial interference with the Appellant’s family life with the son. Some forms of contact could be maintained. The Appellant’s wife could return to Jamaica with him and thus each could continue their family relationship. His employment skills and community links could be maintained in Jamaica, although they might take a different form.
14. The Adjudicator then examined the Appellant’s past record. He did not accept at face value the Appellant’s past denial of dissembling about his identity and was persuaded that he gave and had been deported in the false name of Talbot. He also rejected the denial by the Appellant that a false name had been given on arrest in 1995. It concerned the Adjudicator that the probation officer had assessed him as having a fourteen percent chance of re-offending.
15. Overall, the Adjudicator concluded that the gravity of the offence outweighed the compassionate circumstances relied on under the Immigration Rules. There would be a significant impact on his relationship with his son but some form of telephone or visiting contact would be maintained. His relationship with his wife could be maintained on return to Jamaica. There was no breach of Article 8. The appeal was dismissed.
16. The Appellant contended that the Adjudicator had erred in four respects. He had failed to appreciate the full extent of contact between the Appellant and his son, and there was also further evidence now to support the extent of that relationship; his reasoning on the material was inadequate or had ignored material aspects. He had also excluded relevant post Secretary of State decision material because of his flawed interpretation of section 77 (4) of the 1999 Act. Second, he had overstated the Appellant’s ability to maintain contact with his son from Jamaica, and to return for contact. Third, the Adjudicator had ignored positive aspects of the Appellant’s behaviour in prison and after release. Fourth, the Adjudicator had misunderstood the significance of the evidence about the risk of re-offending.
17. It is not in dispute but that section 77 (4) had been misunderstood by the Adjudicator in the light of SK, above, and that evidence about matters arising after the Secretary of State’s decision should be taken into account in this case in relation to all human rights aspects. Our jurisdiction in this case covers both errors of fact and law.
18. Taking first the relationship with his son, Mr Omere for the Appellant drew attention to what the mother had said in her statement signed in September 2002 shortly before the appeal to the Adjudicator. She was in favour of the Appellant having regular access through their agreed but informal arrangements and said that in the “summer holidays” the son “will be spending” the whole time with his father at the father’s house. The possibility of the son moving in with the father was also being discussed; she lived in London. An earlier letter of April 2002 referred to fortnightly access, daily telephone calls, past contact while in prison and expected contact during the 2002 summer holidays. A letter of 5 July 2002 from the mother said that the Appellant had arranged for the son to stay with him towards the end of July for six weeks. The two saw each other fortnightly or monthly; their relationship was important.
19. The Appellant’s own written evidence to the Adjudicator had stated in two short sentences that he had a very good relationship with his son, and was anxious now to provide for his family, including the daughter with whom he had lost contact.
20. Mr Omere submitted that the more extensive oral evidence from the Appellant had been that the son had stayed with him in Nottingham for the six weeks summer vacation, and that there were discussions with the mother about the son spending more time with his father in Nottingham.
21. This was contrasted with what the Adjudicator said in his determination, about the absence of staying contact but arrangements being made for that in the future. It was said that the fact of staying contact had been ignored. The Adjudicator had said in paragraphs 16 and 17:
“16. The Appellant has given evidence that the child born 11 June 1995 is his son. He has produced a copy birth certificate naming him as the child’s father and he has produced copies of correspondence, stories and a school report to show that he maintains an interest in his son. I accept that the Appellant travels to see his son on his days off and maintains contact with him over the phone 3 times a week. His son does not have staying contact with him but he would like to arrange that in the future. He says that there are no formal arrangements for the payment of maintenance but he pays amounts of between £20 and £100 at times. I find that the Appellant has strong contacts with his son but it does not amount to overnight staying contact. His contact with his son would be reduced to the extent of his visits if the Appellant were removed from the UK. The Appellant would, if he met the requirements, be able to apply abroad for entry clearance to visit his son. He would also be able to maintain telephone contact.
17. From his son’s point of view, his father’s return to Jamaica would not deprive him of his main carer or of someone with whom he is at present having staying access. He should be able to maintain telephone contact with his father albeit at a less frequent rate than the 3 times a week at present. Subject to practical arrangements there is no reason why he should not be able to see his father on occasional visits. I find it significant the mother did not attend to give evidence at the hearing. I also found it significant that the Appellant said he did not know why she had not attended having left that to his solicitors. I have no direct oral evidence from the carer as to any emotional effect that reduction in contact might have but the written statement from his mother shows that he values his fortnightly contact visits from his father. I find that the Appellant’s removal from the UK would significantly interfere with the contact he has with his father but the disruption would not total and could be maintained by phone and occasional visits.”
22. The Tribunal had further evidence in the form of a witness statement from the Appellant. He was still married to his second wife and although separated from her was looking to get back with her. The stress of his immigration status had been a major factor, and he had lost his job. He had discovered that his daughter was now in Zambia, her mother in Canada. He was in telephone contact with his son three or four times a week; he now saw him during holidays and at weekends. The son’s mother was in Jamaica looking after her mother and the son was looked after by her sister. The mother had provided no updating statement for that reason.
23. All this, it was submitted, showed the substance of the family life which the Appellant enjoyed with the son. It also went to the degree to which for Article 8 purposes, family life had been established and would be interfered with.
24. We examined the Adjudicator’s notes of evidence and, as we told the parties, they do record the Appellant as saying that his son “spends summer holiday with me” and that his staying with the father had been discussed.
25. The second and related point in the appeal concerned the prospects of the Appellant maintaining contact with his son from Jamaica. The Adjudicator had concluded that telephone contact and occasional visits could be maintained. But this would be a severe disruption, and more severe than the Adjudicator had allowed for, because there would be a minimum of three years before his return would be contemplated by the Secretary of State following deportation, and the fact that he did not own or occupy property in the United Kingdom would prevent him from complying with the Immigration Rules. The son would be adversely affected through this loss of contact. Contact with the daughter, now that her whereabouts were established, could more readily be made from a stable base in the United Kingdom.
26. Taking these two points together, the Secretary of State through Ms Ramachandran submitted in reply that the Appellant was not the main carer for the son, had not been shown to enjoy holiday staying contact in fact, for the evidence was all prospective, and the son could spend time in Jamaica. The absence of direct oral evidence from the mother was important; the wife was silent. Staying access was yet to come. His current wife could return to Jamaica. He had lost contact with his daughter. Return was proportionate.
27. The third point made by the Appellant was that part of the balancing factors under paragraph 364 was the personal history of the Appellant, his character, conduct and employment record. The Probation Service report on him dated 17 July 2002 which concerned his progress in prison and on parole was very positive: he had completed educational courses in prison, attended drug awareness courses and had become involved with useful groups in prison. He had worked hard since his release in November 2001, in seeking work, he had demonstrated genuine remorse, had trained as a fork-lift truck driver successfully completing various temporary placements and was now (July 2002) seeking permanent employment. He now (July 2002) had a three bed-roomed council tenancy in Nottingham. He had also become involved with a homeless persons community group and wanted to become a community role model. The question was not, as it was said the Adjudicator appeared to think, whether that group could survive without him, but what his participation positively showed about his reformed character.
28. It is convenient to link this with the fourth point, the alleged misunderstanding of the significance of the evidence about the risk of re-offending. The Adjudicator did set out the essential features of the Appellant’s conduct in prison and subsequently, and also his involvement with community groups. He said:
“Although therefore his links with the UK do include his current employment he has both general educational and specific work place skills, which would be of use to him
if he returned to Jamaica.
The Appellant has produced minutes of a Race Relations sub-committee and has given evidence of his involvement in a community action group. I accept his involvement, which is to his credit, but no doubt those groups can function without the Appellant and he will be able to be involved in similar community activities in Jamaica.
I have taken into account the report provided by Brenda Boggild, probation officer and dated 17 July 2002 prepared specifically for this appeal. That report speaks well of him and the efforts he has made since his release from prison. It does however concern me greatly that at paragraph 16 that his prison Offender Group Reconviction Scale score was 14%. The probation officer says that is a low score as does the Appellant’s advocate. Whatever the significance of 14% in terms actual likelihood to re-offend, and the Appellant has not sought to have the probation officer explain, I find it shows there is a likelihood of re-offending which cannot be discounted when making my decision.”
29. Mr Omere submitted that the Adjudicator had misunderstood the evidence about the fourteen percent reconviction risk, treating it as a significant adverse point when it was a low risk and as such a point in the Appellant’s favour. In paragraph 32, the Adjudicator had said that there was “some possibility, albeit low,” of the Appellant re-offending.
30. Mr Omere submitted that it meant that the Appellant was in a group of which fourteen percent would re-offend, not that there was a fourteen percent chance that the Appellant would re-offend. There had been no actual re-offending either. Risk factors associated with his offending had changed – drug use, acquaintances, homelessness, unemployment. Those points were borne out by a probation service letter of 17 October 2002.
31. Ms Ramachandran submitted that the Adjudicator had dealt properly with the skills acquired and community group involvement. He would be able to use his skills and interest in the community to good effect in Jamaica. The Adjudicator had also treated the Appellant as at a low risk of re-offending, which is what was contended, and accepted the efforts at rehabilitation but had also looked at the very serious nature of the offence and had set it in the context of his past behaviour in the United Kingdom, including other incidents with the police in which he concluded a false identity had been given.
32. The grounds of appeal had also taken issue with findings made by the Adjudicator in relation to the use of false names as to which it was said the Secretary of State had failed to produce direct rather than hearsay evidence, and had sought to explain the connections between the hired car and Mr Talbot. These were not pursued orally.
33. We were also provided with a number of authorities but they were not the focus of the submissions.
Conclusions
34. Although in any particular case it is unlikely that the result will be very different applying the provisions of paragraph 364 HC 395 and Article 8 ECHR, it is worth pointing out that there are differences. First, the task of the decision-maker on appeal from the Secretary of State under paragraph 364 is to decide whether the balance struck by the Secretary of State is correct in the circumstances. This is the balance between the public interest and other relevant circumstances.
35. Second, compassionate circumstances may form part of the considerations which arise under Article 8, but they do not do so as such but only where they are part of the arguments about family or private life. They are by contrast a necessary part of the consideration of paragraph 364.
36. Third, it is noteworthy that paragraph 364 with its reference to compassionate circumstances, domestic circumstances and all relevant factors brings in the effect of deportation on other family members who are not being deported with the Appellant; thus under the paragraph the effect on the son is relevant. Under Article 8, the effect on the son would be limited to its consequential effect on the father as the son is not being removed with the father. This means that the appeal available under the Rules is wider than the appeal available to the Appellant under the applicable Act which confines consideration of the human rights to those of the Appellant.
37. The decision-maker comes to his own decision on the merits, giving weight to any Secretary of State policies on who should be deported or the gravity with which any sort of offence is perceived and to his decision, but the appeal decision is for the appellate body. This contrasted with the pre Razgar [2004] UKHL 27, pre Huang [2005] EWCA Civ 105, review approach to proportionality under Article 8. The Huang decision applies to the consideration of Article 8 issues.
38. Fourth, in applying Huang to deportation cases, as there are Immigration Rules which apply to deportation, the position under the Rules should be considered first. If the case under the Rules fails, it is very difficult to see what factors under Article 8 are not subsumed already in paragraph 364. Article 8 should then be considered with Huang in mind, but it is difficult to see how a case which fails under the Rules here could be disproportionate under Article 8. However, the Article focuses on family and private life and respect for those interests is a right which requires to be outweighed by other legitimate interests: immigration control and the prevention of crime.
39. We turn to the first two grounds of appeal. It is possible that the Adjudicator did misunderstand the evidence about the staying contact between the Appellant and his son. It is clear that oral evidence was given to the effect that the son had spent the summer holiday of 2002 with the Appellant; the letter from the mother in September 2002 undoubtedly reads as if it is prospective and at that date the 2002 summer holidays were already over. It may be as Mr Omere suggested that the prospective language of her earlier pre-summer holidays letters had been carried over in her later latter of support for the Appellant. We are prepared to assume that the Adjudicator made an error here and that there had already been staying contact between father and son in the holidays.
40. We note that the Adjudicator refers in paragraph 18 to the fact that the Appellant would be able to apply from abroad for entry clearance “if he met the requirements” of the Rules. The Adjudicator did not comment on paragraph 246 which includes the requirement that the applicant have accommodation which he owns or occupies exclusively, a requirement which the Appellant could not satisfy. But that requirement seems to relate to someone which is seeking long term entry in order to exercise access rights and does not apply to someone who seeks to enter as a visitor. The Adjudicator did not comment on the likely period for which the Appellant would be excluded from the United Kingdom as a result of being deported. As it is a violent offence which leads to his deportation, it would normally be rather longer than the normal three year minimum and is likely to be more than double that. In one sense the policy of deportation for serious offences is undermined if the deportee can return relatively soon afterwards. We have noted that this is not a factor which is adequately appreciated by Adjudicators or covered in their decisions. We regard this as the more serious obstacle to the resumption of contact than paragraph 246 which does not deal with the prospects of a visit visa or one which permitted multiple visits.
41. It is right that the Adjudicator accepts that there would be an interference with the Appellant’s family life and indeed with the son’s, and that direct contact would be significantly reduced. In paragraph 29, he refers to regular telephone calls and infrequent access visits but he does not say whether those are to Jamaica by the son or to the United Kingdom by the Appellant.
42. The Adjudicator is correct in rejecting the notion of family life with the first wife, the daughter or her mother and there is nothing in the discovery of her whereabouts which is remotely persuasive as a basis for staying in the United Kingdom. He is also correct in his assessment that the Appellant’s present wife could return to Jamaica with him, for she is a Jamaican.
43. The Adjudicator has underestimated to a modest degree the extent of family life enjoyed with the son because there had been staying contact and not just the prospect of it, we conclude. It is possible that he has under-estimated the effect of the deportation on the ability of the Appellant to apply for any form of entry clearance including a visit visa.
44. We do not regard those as significant errors in the balance. The father is not, and there was no more than a speculative suggestion at one time that he might become, the main carer for the son. There is no suggestion that the Appellant would ever live with the mother and son as a family. Contact by telephone could be maintained from Jamaica. The direct contact could not be maintained on the same basis; this would include visits at weekends or holidays or staying contact in the United Kingdom. The Appellant would be unable to visit the United Kingdom for many years, but the apparent harmony between the mother and father would mean that visits by the son to Jamaica cannot be regarded as precluded. The Adjudicator was right to point out that the gaps between such contacts would not be so great and the son not so young that memory of the father would fade.
45. We now turn to the third ground of appeal. There is nothing in this. The Adjudicator recognised the points made about how the appellant had endeavoured to improve himself after his conviction and release. We see the references to his employment endeavours as positive recognition of what he had tried to do as with the credit given by the Adjudicator in paragraph 21 for the community involvement. He does not limit his consideration to whether the groups can function without him. The Adjudicator is also fully entitled to give weight to the skills acquired for employment purposes and to the fact that they could be used to his advantage in Jamaica and so lessen the difficulties which he might face. The same approach was legitimately applied to the outlook exemplified by his involvement with community groups here: that could be applied to his benefit in Jamaica.
46. The fourth ground of appeal has some force. The Adjudicator had an explanation of the 14 % which shows that there was a low risk of re-offending. The Adjudicator appears not to give it the significance which it warranted because he reaches the conclusion that “whatever the significance of 14 % in terms [of] actual likelihood to re-offend … I find it shows there is a likelihood of re-offending which cannot be discounted when making my decision”.
47. However, the Adjudicator in that last remark is not suggesting that it is more probable than not that there will be re-offending, but a risk which cannot be discounted. The Appellant’s evidence did not show that there was no risk. It appears to us that the Adjudicator probably did not discount the risk sufficiently by reference to that evidence but he did properly go on to make the important point that the offence in question was serious and that it was his second conviction. He was also entitled to give weight to the Secretary of State’s policy of treating offences of violence as a particularly serious type of offences.
48. Allowing for the Adjudicator to have over-estimated the degree of risk as suggested by the Probation Report, and so combined with the domestic circumstances and family life which we have considered earlier, he had put the overall position less favourably to the Appellant than he should have done on three counts, we are satisfied that the overall conclusion under paragraph 364 remains sound and we would reach the same conclusion in the light of what we now understand the position to be.
49. This was a serious offence of violence; it was a second offence. We accept the soundness of the Adjudicator’s findings as to the use of false names. The Appellant has endeavoured to reform himself and as the Adjudicator said there are factors favourable to him. But the gravity of the offence requires something far more substantial before the legitimate public interest in the removal of a violent criminal can be counter-balanced. The low level of risk, taking the probation service assessment at face value and allying it to the change in circumstances since the offence does not persuade us that the gravity of the offence should not lead to deportation. For us the significant point is the relationship with the son and we take into account the effect on father and son. We have limited specific evidence about the effect on the son but we accept that there is a reasonable relationship which involves staying and parental-child affection and love. However, the disruption would not be to the relationship with the main carer; it is to some extent already disrupted by past imprisonment and separation; it is not clear to what extent the father ever lived with the mother. The telephone contact could be maintained. There would be scope for visits to Jamaica, although it would be many years, and significant years in the life of a boy of about nine now, before the Appellant could reasonably expect to return to the United Kingdom on a visit. But taking all the points together we do not regard the deportation as falling outside the Rules.
50. The same qualifications need to be entered in respect of the findings of the Adjudicator under Article 8. But the same balance is arrived at by us.
51. Accordingly this appeal is dismissed. It is reported for what we say about the interaction between Article 8 and the Rules, in deportation cases.
MR JUSTICE OUSELEY
PRESIDENT
IMMIGRATION APPEAL TRIBUNAL
Date: 12 January 2005
Date Determination notified:
18 May 2005
Before:
The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
Mr P S Aujla
Between:
APPELLANT
and
Secretary of State for the Home Department
RESPONDENT
Appearances:
For the Appellant: Mr F Omere, instructed by Paragon Law
For the Respondent: Ms P Ramachandran, Home Office Presenting Officer
DETERMINATION AND REASONS
1. This is an appeal against the determination of an Adjudicator, Mr L A North, promulgated as long ago as 9 October 2002. The Appellant, who is a male citizen of Jamaica born in 1959, appealed to the Adjudicator against the Secretary of State’s decision in March 2002 to make a deportation order against the Appellant on the ground that his removal would be conducive to the public good. This was because the Appellant had been convicted of robbery in June 1999.
2. The Adjudicator dismissed the appeal under both the Immigration Rules and on human rights grounds. The Tribunal refused permission to appeal in November 2002 but Judicial Review of that was sought and the decision of the Tribunal was quashed by consent in an Order dated 23 September 2003 and stamped 13 October 2003.
3. The basis upon which the refusal of leave to appeal was quashed was that the Adjudicator was said to have disregarded certain evidence on the grounds that he was precluded by section 77(4) of the Immigration and Asylum Act 1999 from having regard to it. It was said to be arguable that that was an error in particular in the light of the Tribunal’s decision in SK [2002] UKIAT, 05613.
4. The application for permission to appeal therefore came back before the Tribunal, this being a Judicial Review rather than a Statutory Review case, and it was granted in a determination dated 21 October 2004 and notified on 29 November 2004. The reason for delay in the application for permission to appeal coming before the Tribunal, following the quashing of its earlier decision, does not appear from the file. It was a common but unsatisfactory feature of Judicial Review that the successful applicant might feel no urgency in notifying the Tribunal of his success and the losing Secretary of State, who had a contrary interest, might not have regarded it as his obligation to do so instead. It may on the other hand be that there was an administrative inefficiency at the Tribunal. We do not know.
5. The Appellant came to the United Kingdom in 1987 as a visitor with four weeks leave to enter and was granted a six-month extension, during which time he married and thereafter was granted indefinite leave to remain. He was divorced in October 2001; but the marriage had ended as a relationship in the early nineties; there were no children of that marriage.
6. His immigration history and his alleged offending behaviour had been interwoven to some degree. His September 1994 arrest, in connection with the search of car in which a knife and a forged fifty pound note were found, had occurred when he was sitting in the driver’s seat of a car hired by Valmore Talbot; he said that his true identity was CM, the name on a letter from British Rail in his possession. But he had been returned to Jamaica as Valmore Talbot; there he had been believed to be CM, had been returned to England, where Ms Cole, his son’s mother, had brought his Jamaican passport to the airport. The Secretary of State’s refusal letter said that he had been given leave to enter as returning resident CM, having been removed as illegal entrant Talbot. There seems to have been some connection with a Ms Talbot, and her application to enter was associated with his file.
7. He had been wrongly alleged to be a Neville Smith when arrested in 1995 for possession of crack cocaine; it was at court that he had been recognised to be CM. He was acquitted.
8. The offence which has led to the decision under appeal was committed in January 1999. The sentencing remarks of His Honour Judge Gerber in June 1999, following the Appellant’s conviction by the jury, described the offence as “very serious indeed’, “… this was a plan, in which another woman was laid as a bait in the street, got the unsuspecting victim to come to the door of the house, you drag him in, and then produce a knife, which we have seen, hold it to his throat and then proceed to rob him of all his money. Having held him for some twenty minutes, when the street is clear, he is bundled into the street without his money and threatened not to report it to the police.” He was sentenced to five years in imprisonment. No recommendation for deportation was made. He blamed the offence on drug taking and the woman who he said had instigated it. He had only one previous conviction for handling a stolen credit card, for which he had received a prison sentence.
9. The Appellant’s evidence to the Adjudicator was that he had a daughter in the United Kingdom by one woman, but he did not know where they were. He also had a son in the United Kingdom by another woman. Both children were about seven years old at the time of the Adjudicator’s hearing, combining his statement and his grounds of appeal, although other material suggests the daughter was four years older. In November 2001, in prison, he married another woman, a Jamaican national living in the United Kingdom, who has now sought leave to remain as the spouse of a person present and settled in the United Kingdom.
10. He said that he was remorseful of his past actions, wanted now to provide for his family, had room for his son to visit, was involved in a local community group, but if deported would be unable to seek entry clearance to visit his son or to maintain telephone contact. The son’s mother had been expected to attend the Adjudicator’s hearing; he did not know why she had not done so. He also had good prospects of full-time, permanent responsible employment and he had put his time in prison to good use. He spoke to his son three times a week, aspired to staying in contact and paid varying amounts of maintenance, irregularly.
11. The Adjudicator considered paragraph 364 HC 395 which provides for a striking of a balance in deportation cases between the public interest, compassionate circumstances and the aim of consistency and fairness. He also set out the appropriate approach to Article 8 ECHR, save that he erred, in the light of SK, in construing section 77(4) of the 1999 Act as confining his attention to the facts as at the date of the SSHD’s decision.
12. The Adjudicator concluded that the Secretary of State’s policy of deporting those convicted of violent offences was not wrong, that His Honour Judge Gerber’s sentencing remarks and the five-year sentence showed the seriousness of the robbery offence. It was a “particularly serious offence”. In considering the counter-balancing factors in paragraph 364 of HC 395, the Adjudicator pointed to the absence of any matters making return to Jamaica unduly difficult. This was where the Appellant had spent his formative and a significant part of his adult years.
13. There was no connection remaining with his first wife. His statements showed no continuing connection with the daughter or her mother. The Adjudicator accepted a continuing contact with the son as described above. From Jamaica, the Appellant could continue to telephone, and could seek visiting contact through entry clearance. It was significant to the Adjudicator that the son’s mother had not attended to give evidence in support. There was no evidence as to the effect on the son of any loss of or reduction in contact with the Appellant, though the son valued the fortnightly contact visits. Deportation would constitute a significant, partial interference with the Appellant’s family life with the son. Some forms of contact could be maintained. The Appellant’s wife could return to Jamaica with him and thus each could continue their family relationship. His employment skills and community links could be maintained in Jamaica, although they might take a different form.
14. The Adjudicator then examined the Appellant’s past record. He did not accept at face value the Appellant’s past denial of dissembling about his identity and was persuaded that he gave and had been deported in the false name of Talbot. He also rejected the denial by the Appellant that a false name had been given on arrest in 1995. It concerned the Adjudicator that the probation officer had assessed him as having a fourteen percent chance of re-offending.
15. Overall, the Adjudicator concluded that the gravity of the offence outweighed the compassionate circumstances relied on under the Immigration Rules. There would be a significant impact on his relationship with his son but some form of telephone or visiting contact would be maintained. His relationship with his wife could be maintained on return to Jamaica. There was no breach of Article 8. The appeal was dismissed.
16. The Appellant contended that the Adjudicator had erred in four respects. He had failed to appreciate the full extent of contact between the Appellant and his son, and there was also further evidence now to support the extent of that relationship; his reasoning on the material was inadequate or had ignored material aspects. He had also excluded relevant post Secretary of State decision material because of his flawed interpretation of section 77 (4) of the 1999 Act. Second, he had overstated the Appellant’s ability to maintain contact with his son from Jamaica, and to return for contact. Third, the Adjudicator had ignored positive aspects of the Appellant’s behaviour in prison and after release. Fourth, the Adjudicator had misunderstood the significance of the evidence about the risk of re-offending.
17. It is not in dispute but that section 77 (4) had been misunderstood by the Adjudicator in the light of SK, above, and that evidence about matters arising after the Secretary of State’s decision should be taken into account in this case in relation to all human rights aspects. Our jurisdiction in this case covers both errors of fact and law.
18. Taking first the relationship with his son, Mr Omere for the Appellant drew attention to what the mother had said in her statement signed in September 2002 shortly before the appeal to the Adjudicator. She was in favour of the Appellant having regular access through their agreed but informal arrangements and said that in the “summer holidays” the son “will be spending” the whole time with his father at the father’s house. The possibility of the son moving in with the father was also being discussed; she lived in London. An earlier letter of April 2002 referred to fortnightly access, daily telephone calls, past contact while in prison and expected contact during the 2002 summer holidays. A letter of 5 July 2002 from the mother said that the Appellant had arranged for the son to stay with him towards the end of July for six weeks. The two saw each other fortnightly or monthly; their relationship was important.
19. The Appellant’s own written evidence to the Adjudicator had stated in two short sentences that he had a very good relationship with his son, and was anxious now to provide for his family, including the daughter with whom he had lost contact.
20. Mr Omere submitted that the more extensive oral evidence from the Appellant had been that the son had stayed with him in Nottingham for the six weeks summer vacation, and that there were discussions with the mother about the son spending more time with his father in Nottingham.
21. This was contrasted with what the Adjudicator said in his determination, about the absence of staying contact but arrangements being made for that in the future. It was said that the fact of staying contact had been ignored. The Adjudicator had said in paragraphs 16 and 17:
“16. The Appellant has given evidence that the child born 11 June 1995 is his son. He has produced a copy birth certificate naming him as the child’s father and he has produced copies of correspondence, stories and a school report to show that he maintains an interest in his son. I accept that the Appellant travels to see his son on his days off and maintains contact with him over the phone 3 times a week. His son does not have staying contact with him but he would like to arrange that in the future. He says that there are no formal arrangements for the payment of maintenance but he pays amounts of between £20 and £100 at times. I find that the Appellant has strong contacts with his son but it does not amount to overnight staying contact. His contact with his son would be reduced to the extent of his visits if the Appellant were removed from the UK. The Appellant would, if he met the requirements, be able to apply abroad for entry clearance to visit his son. He would also be able to maintain telephone contact.
17. From his son’s point of view, his father’s return to Jamaica would not deprive him of his main carer or of someone with whom he is at present having staying access. He should be able to maintain telephone contact with his father albeit at a less frequent rate than the 3 times a week at present. Subject to practical arrangements there is no reason why he should not be able to see his father on occasional visits. I find it significant the mother did not attend to give evidence at the hearing. I also found it significant that the Appellant said he did not know why she had not attended having left that to his solicitors. I have no direct oral evidence from the carer as to any emotional effect that reduction in contact might have but the written statement from his mother shows that he values his fortnightly contact visits from his father. I find that the Appellant’s removal from the UK would significantly interfere with the contact he has with his father but the disruption would not total and could be maintained by phone and occasional visits.”
22. The Tribunal had further evidence in the form of a witness statement from the Appellant. He was still married to his second wife and although separated from her was looking to get back with her. The stress of his immigration status had been a major factor, and he had lost his job. He had discovered that his daughter was now in Zambia, her mother in Canada. He was in telephone contact with his son three or four times a week; he now saw him during holidays and at weekends. The son’s mother was in Jamaica looking after her mother and the son was looked after by her sister. The mother had provided no updating statement for that reason.
23. All this, it was submitted, showed the substance of the family life which the Appellant enjoyed with the son. It also went to the degree to which for Article 8 purposes, family life had been established and would be interfered with.
24. We examined the Adjudicator’s notes of evidence and, as we told the parties, they do record the Appellant as saying that his son “spends summer holiday with me” and that his staying with the father had been discussed.
25. The second and related point in the appeal concerned the prospects of the Appellant maintaining contact with his son from Jamaica. The Adjudicator had concluded that telephone contact and occasional visits could be maintained. But this would be a severe disruption, and more severe than the Adjudicator had allowed for, because there would be a minimum of three years before his return would be contemplated by the Secretary of State following deportation, and the fact that he did not own or occupy property in the United Kingdom would prevent him from complying with the Immigration Rules. The son would be adversely affected through this loss of contact. Contact with the daughter, now that her whereabouts were established, could more readily be made from a stable base in the United Kingdom.
26. Taking these two points together, the Secretary of State through Ms Ramachandran submitted in reply that the Appellant was not the main carer for the son, had not been shown to enjoy holiday staying contact in fact, for the evidence was all prospective, and the son could spend time in Jamaica. The absence of direct oral evidence from the mother was important; the wife was silent. Staying access was yet to come. His current wife could return to Jamaica. He had lost contact with his daughter. Return was proportionate.
27. The third point made by the Appellant was that part of the balancing factors under paragraph 364 was the personal history of the Appellant, his character, conduct and employment record. The Probation Service report on him dated 17 July 2002 which concerned his progress in prison and on parole was very positive: he had completed educational courses in prison, attended drug awareness courses and had become involved with useful groups in prison. He had worked hard since his release in November 2001, in seeking work, he had demonstrated genuine remorse, had trained as a fork-lift truck driver successfully completing various temporary placements and was now (July 2002) seeking permanent employment. He now (July 2002) had a three bed-roomed council tenancy in Nottingham. He had also become involved with a homeless persons community group and wanted to become a community role model. The question was not, as it was said the Adjudicator appeared to think, whether that group could survive without him, but what his participation positively showed about his reformed character.
28. It is convenient to link this with the fourth point, the alleged misunderstanding of the significance of the evidence about the risk of re-offending. The Adjudicator did set out the essential features of the Appellant’s conduct in prison and subsequently, and also his involvement with community groups. He said:
“Although therefore his links with the UK do include his current employment he has both general educational and specific work place skills, which would be of use to him
if he returned to Jamaica.
The Appellant has produced minutes of a Race Relations sub-committee and has given evidence of his involvement in a community action group. I accept his involvement, which is to his credit, but no doubt those groups can function without the Appellant and he will be able to be involved in similar community activities in Jamaica.
I have taken into account the report provided by Brenda Boggild, probation officer and dated 17 July 2002 prepared specifically for this appeal. That report speaks well of him and the efforts he has made since his release from prison. It does however concern me greatly that at paragraph 16 that his prison Offender Group Reconviction Scale score was 14%. The probation officer says that is a low score as does the Appellant’s advocate. Whatever the significance of 14% in terms actual likelihood to re-offend, and the Appellant has not sought to have the probation officer explain, I find it shows there is a likelihood of re-offending which cannot be discounted when making my decision.”
29. Mr Omere submitted that the Adjudicator had misunderstood the evidence about the fourteen percent reconviction risk, treating it as a significant adverse point when it was a low risk and as such a point in the Appellant’s favour. In paragraph 32, the Adjudicator had said that there was “some possibility, albeit low,” of the Appellant re-offending.
30. Mr Omere submitted that it meant that the Appellant was in a group of which fourteen percent would re-offend, not that there was a fourteen percent chance that the Appellant would re-offend. There had been no actual re-offending either. Risk factors associated with his offending had changed – drug use, acquaintances, homelessness, unemployment. Those points were borne out by a probation service letter of 17 October 2002.
31. Ms Ramachandran submitted that the Adjudicator had dealt properly with the skills acquired and community group involvement. He would be able to use his skills and interest in the community to good effect in Jamaica. The Adjudicator had also treated the Appellant as at a low risk of re-offending, which is what was contended, and accepted the efforts at rehabilitation but had also looked at the very serious nature of the offence and had set it in the context of his past behaviour in the United Kingdom, including other incidents with the police in which he concluded a false identity had been given.
32. The grounds of appeal had also taken issue with findings made by the Adjudicator in relation to the use of false names as to which it was said the Secretary of State had failed to produce direct rather than hearsay evidence, and had sought to explain the connections between the hired car and Mr Talbot. These were not pursued orally.
33. We were also provided with a number of authorities but they were not the focus of the submissions.
Conclusions
34. Although in any particular case it is unlikely that the result will be very different applying the provisions of paragraph 364 HC 395 and Article 8 ECHR, it is worth pointing out that there are differences. First, the task of the decision-maker on appeal from the Secretary of State under paragraph 364 is to decide whether the balance struck by the Secretary of State is correct in the circumstances. This is the balance between the public interest and other relevant circumstances.
35. Second, compassionate circumstances may form part of the considerations which arise under Article 8, but they do not do so as such but only where they are part of the arguments about family or private life. They are by contrast a necessary part of the consideration of paragraph 364.
36. Third, it is noteworthy that paragraph 364 with its reference to compassionate circumstances, domestic circumstances and all relevant factors brings in the effect of deportation on other family members who are not being deported with the Appellant; thus under the paragraph the effect on the son is relevant. Under Article 8, the effect on the son would be limited to its consequential effect on the father as the son is not being removed with the father. This means that the appeal available under the Rules is wider than the appeal available to the Appellant under the applicable Act which confines consideration of the human rights to those of the Appellant.
37. The decision-maker comes to his own decision on the merits, giving weight to any Secretary of State policies on who should be deported or the gravity with which any sort of offence is perceived and to his decision, but the appeal decision is for the appellate body. This contrasted with the pre Razgar [2004] UKHL 27, pre Huang [2005] EWCA Civ 105, review approach to proportionality under Article 8. The Huang decision applies to the consideration of Article 8 issues.
38. Fourth, in applying Huang to deportation cases, as there are Immigration Rules which apply to deportation, the position under the Rules should be considered first. If the case under the Rules fails, it is very difficult to see what factors under Article 8 are not subsumed already in paragraph 364. Article 8 should then be considered with Huang in mind, but it is difficult to see how a case which fails under the Rules here could be disproportionate under Article 8. However, the Article focuses on family and private life and respect for those interests is a right which requires to be outweighed by other legitimate interests: immigration control and the prevention of crime.
39. We turn to the first two grounds of appeal. It is possible that the Adjudicator did misunderstand the evidence about the staying contact between the Appellant and his son. It is clear that oral evidence was given to the effect that the son had spent the summer holiday of 2002 with the Appellant; the letter from the mother in September 2002 undoubtedly reads as if it is prospective and at that date the 2002 summer holidays were already over. It may be as Mr Omere suggested that the prospective language of her earlier pre-summer holidays letters had been carried over in her later latter of support for the Appellant. We are prepared to assume that the Adjudicator made an error here and that there had already been staying contact between father and son in the holidays.
40. We note that the Adjudicator refers in paragraph 18 to the fact that the Appellant would be able to apply from abroad for entry clearance “if he met the requirements” of the Rules. The Adjudicator did not comment on paragraph 246 which includes the requirement that the applicant have accommodation which he owns or occupies exclusively, a requirement which the Appellant could not satisfy. But that requirement seems to relate to someone which is seeking long term entry in order to exercise access rights and does not apply to someone who seeks to enter as a visitor. The Adjudicator did not comment on the likely period for which the Appellant would be excluded from the United Kingdom as a result of being deported. As it is a violent offence which leads to his deportation, it would normally be rather longer than the normal three year minimum and is likely to be more than double that. In one sense the policy of deportation for serious offences is undermined if the deportee can return relatively soon afterwards. We have noted that this is not a factor which is adequately appreciated by Adjudicators or covered in their decisions. We regard this as the more serious obstacle to the resumption of contact than paragraph 246 which does not deal with the prospects of a visit visa or one which permitted multiple visits.
41. It is right that the Adjudicator accepts that there would be an interference with the Appellant’s family life and indeed with the son’s, and that direct contact would be significantly reduced. In paragraph 29, he refers to regular telephone calls and infrequent access visits but he does not say whether those are to Jamaica by the son or to the United Kingdom by the Appellant.
42. The Adjudicator is correct in rejecting the notion of family life with the first wife, the daughter or her mother and there is nothing in the discovery of her whereabouts which is remotely persuasive as a basis for staying in the United Kingdom. He is also correct in his assessment that the Appellant’s present wife could return to Jamaica with him, for she is a Jamaican.
43. The Adjudicator has underestimated to a modest degree the extent of family life enjoyed with the son because there had been staying contact and not just the prospect of it, we conclude. It is possible that he has under-estimated the effect of the deportation on the ability of the Appellant to apply for any form of entry clearance including a visit visa.
44. We do not regard those as significant errors in the balance. The father is not, and there was no more than a speculative suggestion at one time that he might become, the main carer for the son. There is no suggestion that the Appellant would ever live with the mother and son as a family. Contact by telephone could be maintained from Jamaica. The direct contact could not be maintained on the same basis; this would include visits at weekends or holidays or staying contact in the United Kingdom. The Appellant would be unable to visit the United Kingdom for many years, but the apparent harmony between the mother and father would mean that visits by the son to Jamaica cannot be regarded as precluded. The Adjudicator was right to point out that the gaps between such contacts would not be so great and the son not so young that memory of the father would fade.
45. We now turn to the third ground of appeal. There is nothing in this. The Adjudicator recognised the points made about how the appellant had endeavoured to improve himself after his conviction and release. We see the references to his employment endeavours as positive recognition of what he had tried to do as with the credit given by the Adjudicator in paragraph 21 for the community involvement. He does not limit his consideration to whether the groups can function without him. The Adjudicator is also fully entitled to give weight to the skills acquired for employment purposes and to the fact that they could be used to his advantage in Jamaica and so lessen the difficulties which he might face. The same approach was legitimately applied to the outlook exemplified by his involvement with community groups here: that could be applied to his benefit in Jamaica.
46. The fourth ground of appeal has some force. The Adjudicator had an explanation of the 14 % which shows that there was a low risk of re-offending. The Adjudicator appears not to give it the significance which it warranted because he reaches the conclusion that “whatever the significance of 14 % in terms [of] actual likelihood to re-offend … I find it shows there is a likelihood of re-offending which cannot be discounted when making my decision”.
47. However, the Adjudicator in that last remark is not suggesting that it is more probable than not that there will be re-offending, but a risk which cannot be discounted. The Appellant’s evidence did not show that there was no risk. It appears to us that the Adjudicator probably did not discount the risk sufficiently by reference to that evidence but he did properly go on to make the important point that the offence in question was serious and that it was his second conviction. He was also entitled to give weight to the Secretary of State’s policy of treating offences of violence as a particularly serious type of offences.
48. Allowing for the Adjudicator to have over-estimated the degree of risk as suggested by the Probation Report, and so combined with the domestic circumstances and family life which we have considered earlier, he had put the overall position less favourably to the Appellant than he should have done on three counts, we are satisfied that the overall conclusion under paragraph 364 remains sound and we would reach the same conclusion in the light of what we now understand the position to be.
49. This was a serious offence of violence; it was a second offence. We accept the soundness of the Adjudicator’s findings as to the use of false names. The Appellant has endeavoured to reform himself and as the Adjudicator said there are factors favourable to him. But the gravity of the offence requires something far more substantial before the legitimate public interest in the removal of a violent criminal can be counter-balanced. The low level of risk, taking the probation service assessment at face value and allying it to the change in circumstances since the offence does not persuade us that the gravity of the offence should not lead to deportation. For us the significant point is the relationship with the son and we take into account the effect on father and son. We have limited specific evidence about the effect on the son but we accept that there is a reasonable relationship which involves staying and parental-child affection and love. However, the disruption would not be to the relationship with the main carer; it is to some extent already disrupted by past imprisonment and separation; it is not clear to what extent the father ever lived with the mother. The telephone contact could be maintained. There would be scope for visits to Jamaica, although it would be many years, and significant years in the life of a boy of about nine now, before the Appellant could reasonably expect to return to the United Kingdom on a visit. But taking all the points together we do not regard the deportation as falling outside the Rules.
50. The same qualifications need to be entered in respect of the findings of the Adjudicator under Article 8. But the same balance is arrived at by us.
51. Accordingly this appeal is dismissed. It is reported for what we say about the interaction between Article 8 and the Rules, in deportation cases.
MR JUSTICE OUSELEY
PRESIDENT