Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00054/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision given orally on 08 February 2017
On 08 February 2017
Promulgated on 09 March 2017

Before

The President, The Hon. Mr Justice McCloskey

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ORLANZO LENNOX DALEY
(anonymity direction NOT MADE)
Respondent

Representation
Appellant: Mr D Clarke, Home Office Presenting Officer
Respondent: Mr A MacKenzie, of counsel, instructed by Owens Stevens Solicitors

DECISION
1. I have come to the clear conclusion that the Secretary of State’s appeal must be dismissed and my reasons for thus concluding are, in brief compass, as follows.
2. The determination of this appeal entails a not insignificant exercise of dismantling and disentangling. There are substantial quantities of print in all that has been generated in this case dating from day one, namely the decision letter of the Secretary of State. The sheer bulk of all that has been written has the potential to obscure and distract from the real issues in this appeal. Once the requisite forensic analysis has been carried out those issues are exposed and duly delimited.
3. I begin with the underlying decision of the Secretary of State. This is contained in a letter dated 03 October 2014. As this letter makes clear the Appellant, Orlanzo Lennox Daley, who is a national of Jamaica and is now aged 22 years was the recipient of a so-called “Reasons For Deportation Notice”. This notice recites the Appellant’s criminal history. Reference is made to the order of a Magistrates’ Court and the order of a Crown Court dated 28 December 2012 and 02 October 2013 respectively. Neither of these convictions gave rise to a sentence of immediate imprisonment. The first of those offences, possessing an offensive weapon in public, was dealt with by a community order, an attendance centre requirement, payment of £20 costs and payment of a victim’s surcharge of £60. The second offence was rather more serious. There were two counts of robbery. These were dealt with by suspended sentences. There was a single sentence of nine months’ imprisonment suspended in whole for a period of 24 months, together with supervision and unpaid work orders.
4. In common with the Secretary of State’s decision maker I too have taken careful cognisance of what the Crown Court judge stated upon sentencing the Appellant on 02 October 2013. The judge noted in particular that no physical injury was involved albeit the two victims were clearly shaken not least because the judge accepted there was a threat to stab one of them. The judge noted also the factor of intimidation. He considered the offences to have been planned, he highlighted that there were two offenders acting in concert and observed that the two mobile phones that were stolen had not been recovered, together with the wallet.
5. The judge was, however, persuaded that an immediate custodial sentence was not required. That is a highly significant fact having regard to the punishment available for the offence of robbery and the sentencing guidelines. This was by definition an unusual and exceptional case. The judge took into account the Appellant’s clear criminal record and a series of other mitigating factors. This gave rise to a sentence of nine months’ imprisonment concurrent on each count suspended for two years and subject to supervision by a probation order officer for a period of twelve months. The latter factor of itself is a matter of some significance and I draw attention to it accordingly. Coupled with that is the clear inference (and absence of any evidence) that there was no breach of any of the conditions imposed. Those conditions related to interaction and cooperation with the probation officer.
6. That brings me to the litigation. It has been sadly delayed. There has been a series of decisions of the First-tier and Upper Tribunals. All of them have one key factor in common, namely at every tribunal stage the judges have been concerned with a single decision of the Secretary of State, viz the Notice dated 03 October 2014. As I have pointed out this rehearses the two orders for conviction made against the Appellant on the dates already noted. The key paragraph in the decision letter is [31]. The language of this paragraph can be readily linked first of all to a provision of primary legislation, namely section 117D(2)(c) of the Nationality, Immigration and Asylum Act 2002. The link between the decision maker and that provision of primary legislation is the words “a persistent offender”. Secondly, and even more clearly, there is a link with the Immigration Rules: the provisions noted are paragraphs 398, 399 and 399A. In this context paragraph 398C is the most important of these provisions. It too uses the language “conducive to the public good” and “in the public interest”. It also introduces the test of “causing serious harm” or being “a persistent offender who shows a particular disregard for the law”. These tests are framed in the alternative. That is not to say that in a given case the Secretary of State might decide that both tests are satisfied.
7. The first question which I address is: what did the Secretary of State actually decide? On this issue the decision letter is unambiguous. It is stated:
“The Secretary of State considered your client to be a persistent offender”.
The decision continues:
“It is therefore in accordance with paragraph 398 of the Immigration Rules that the public interest requires your deportation unless an exception to deportation applies”.
It is beyond plausible dispute that this decision was based exclusively on the persistent offender limb in paragraph 398C of the Immigration Rules. That disposes of a substantial chunk of this appeal. It has been argued strongly by Mr Clarke on behalf of the Secretary of State that this decision was also made on the basis of the serious harm limb, i.e. the alternative limb. That argument is confounded by the key passage of the decision letter which I have just quoted. Furthermore it finds no mileage whatsoever in what precedes it. The specific submission advanced was that a serious harm component of the decision is identifiable in paragraph 19. That argument in my view is manifestly unsustainable. Paragraph 19 is a preamble couched in general and non-specific terms with no reference whatsoever to the Appellant. It is a classic boilerplated pro-forma passage.
8. This brings me to the following freestanding issue. The Secretary of State in my judgement has misdirected herself in law in the decision which was made. The gravamen of this decision was an assessment that the Appellant was a persistent offender within the compass of paragraph 398. Paragraph 398C however does not devise a persistent offender test. Rather the test is that of “a persistent offender who shows a particular disregard for the law”. The Secretary of State’s decision has not engaged with the second element of the test devised and for that reason alone is unsustainable in law. Accordingly the decision at this remove cannot be regarded as anything other than unlawful.
9. The major argument advanced at the hearing on behalf of the Secretary of State is that the First-tier Tribunal (“FtT”) erred in law in its treatment of the persistent offender issue. For the reasons which I have just articulated that argument makes no difference. However it fails in any event since it is in my judgement inconceivable that any tribunal properly directing itself in law and taking rational cognizance of the evidence could have found that the Appellant was a persistent offender.
10. I shall in any event consider the main plank of this argument. It is that the FtT failed to have regard to what the Secretary of State has consistently described as “non-convictions”. It is appropriate to observe that in a legal system where there is a presumption of innocence there is no concept known to the law of non-convictions. There is but a binary concept of guilt or innocence. I note that in [36] of the decision in Chege (“persistent offender”) [2016] UKUT 00187 (IAC) there is an undeveloped suggestion that the commission of a criminal offence may be demonstrated by a conviction or a caution or a request that offences be taken into consideration. I reserve my own view on the correctness of the references to caution and offences taken into consideration. However neither of these phenomena arises in the present appeal. This is subject to what I add in [12] infra.
11. What is clear beyond peradventure is that the phrase “non-convictions” in this appeal denotes unproven allegations that the Appellant has engaged in some additional criminal conduct. That is the zenith of this aspect of the Secretary of State’s appeal. Unproven allegations of criminal conduct do not constitute offences. This is repeatedly recognised in Chege. It is an elementary principle in this legal system governed by both statute and the common law. Accordingly any assessment of whether a person is a persistent offender must first of all pose the question: is the person a persistent offender who shows a particular disregard to the law? Second, offences must be identified. This follows inexorably from the word “offender”. Third, what follows will invariably be an evaluative judgment taking into account all material facts and factors. If the decision maker omits the key requirement of showing a particular disregard for the law, as occurred in this case, an error of law is committed. If, further, law as also occurred in this case the decision maker seeks to rely on unproven allegations of criminal conduct in order to build up the persistent offender assessment, a further and obvious error of law is committed. When one views the matter through this prism it becomes abundantly clear that the FtT made no error of law in this respect.
12. Mr Clarke’s submissions mentioned the decision in Bah (EO – Turkey – liability to deport) [2012] UKUT 00196 (IAC). A perusal of [4] to [7] of Bah demonstrates the strong contrast between the matrix of that appeal and that of the present case. The two cases are poles apart. More detailed argument on the dichotomy of “conducive” deportation cases will be required on a suitable future occasion. In this appeal it suffices to say that the burden of proof on the Secretary of State has not been discharged, manifestly so.
13. The second central pillar of the Secretary of State’s appeal is that the FtT erred in law in its approach to the issue of serious harm. There was no issue of serious harm to be considered as my construction of the Secretary of State’s decision letter makes clear. But even if there were it is in my judgement quite clear from the sentencing transcript that serious harm was not a finding open to any decision maker or Tribunal correctly directing itself in law. The whole thrust of the sentences imposed in this case is consistent only with an assessment of harm that was less than serious, considerably so. Accordingly on that alternative basis the appeal must fail.
14. The third main pillar of the case made by the Secretary of State today is that there was a failure on the part of the FtT to take into account and give effect to certain policy guidance of the Secretary of State. To this end Mr Clarke has provided this Tribunal with certain extracts from Home Office Immigration Directorate Instructions. There are two simple answers to this argument. The first is that the Secretary of State’s decision was not based on either of these policies: there is no mention of them, express or oblique. The second is that neither of these policies formed part of the case advanced by the Secretary of State to the FtT. Bearing in mind the role and function and legal status of policies generally and given these two facts it must follow inexorably that this was not an error of law on the part of the FtT.
15. I have identified what I have described as the three central pillars of the Secretary of State’s case. I find no merit or substance in any of them.
Notice of Decision

The appeal is dismissed. The decision of the FtT is affirmed.

No anonymity direction is made.

THE HON. MR JUSTICE MCCLOSKEY
PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Date: 13 February 2017