Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber)

Mehmud (timing of deportation notice) Bangladesh [2011] UKUT 00486(IAC)

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 6 December

…………………………………

Before

MR JUSTICE BLAKE, PRESIDENT
UPPER TRIBUNAL JUDGE CRAIG

Between

tareq mehmud

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Ms Joanne Rothwell, instructed by CGS Citygate Solicitors
For the Respondent: Ms G.Gough, Senior Home Office Presenting Officer

(1) The Secretary of State may serve a deportation decision under s.32 of the UK Borders Act 2007 despite the fact that, unknown to her, the appellant had lodged a notice of application to appeal against conviction out of time.
(2) A notice of deportation can be revoked or the appeal adjourned pending an out of time challenge to the conviction on which automatic deportation depends.

(3) There is a strong public interest in deporting those whose entry has been obtained by fraud and who then participate in a large scale commercial fraud to facilitate illegal entry by use of fraudulent documents.

DETERMINATION AND REASONS

1. The appellant, Tareq Mehmud, is a citizen of Bangladesh who entered the United Kingdom in April 2008 with an entry clearance to study at Thames College. He came to live at an address in London E17 where his mother and elder brother Khaled were staying.

2. In March 2009 the brothers Tareq and Khaled were arrested with others on suspicion of conspiracy to facilitate unlawful immigration. They were remanded in custody. On 18 December 2009 at the Croydon Crown Court the appellant was convicted on count one of the indictment, conspiracy to facilitate illegal entry. The other conspirators had previously pleaded guilty. On 15 January 2010 all defendants were sentenced. Khaled and the other conspirators were sentenced to seven years imprisonment. This appellant was sentenced to four years’ imprisonment. The trial judge expected that by reason of the conviction and sentence each defendant would face automatic deportation.

3. The appellant subsequently appealed against this sentence to the Court of Appeal. He was successful to the extent that his term of imprisonment was reduced from four years to three years. As he had been sentenced to at least twelve months’ imprisonment he remained a foreign criminal and liable to automatic deportation under s.32 of the UK Borders Act 2007.

4. His deportation was under consideration by the Secretary of State from February 2010. On 4 February 2011 the appellant was served with a deportation decision dated 20 January that had been sent by post to the prison on 1 February. It was common ground below that 4 February 2011 is the material date of the decision under the statutory scheme.

5. The appellant appealed on human rights grounds. He contended that deportation would be a disproportionate interference with his right to respect for private and family life under Article 8 ECHR. He further took a preliminary point that the decision was unlawful because at the material date the appellant had lodged an application to appeal against conviction.

6. The appeal was heard on 12 August 2011 by a panel of the First-tier Tribunal sitting at Newport. It was dismissed. The panel concluded:-

a. It was not satisfied that by 4 February 2011 an appeal against conviction had been lodged with the Crown Court.
b. The relationship between the appellant and his elderly mother and the physical and emotional support he gives her did not lay the foundation for an Article 8 claim.
c. In the alternative if Article 8(1) was engaged:

“we would have had no hesitation in finding that the respondent had established on the evidence that the decision to remove the appellant from the United Kingdom was entirely proportionate to the legitimate aim sought to be achieved, namely the maintenance of a firm and fair immigration policy and the prevention of disorder and crime”.

7. Permission to appeal to the Upper Tribunal was granted on grounds of appeal drafted by different counsel. Ms Rothwell who came into the case late adopted them and we are grateful for her succinct submissions.

8. We must now decide in the light of those submissions whether the panel made a material error of law and if so whether we should re-make the decision for ourselves.

Ground 1: The timing of the decision

9. Section 34 of the UK Borders Act 2007, under the heading ‘Timing’, requires a deportation order to be made at a time chosen by the Secretary of State (s.34(1)). A deportation order may not be made (s.34):

“(2) ….while an appeal or further appeal against the conviction or sentence by reference to which the order is to be made-
(a) has been instituted and neither withdrawn nor determined, or
(b) could be brought.

(3) For the purpose of subsection (2)(b) –
(a) the possibility of an appeal out of time with permission shall be disregarded, and
(b) a person who has informed the Secretary of State in writing that the person does not intend to appeal shall be treated as no longer able to appeal.”

10. In the bundle of documents that was before the panel hearing this appeal, was a letter from a firm of solicitors Stephen Fidler and Co dated 4 February 2011 addressed to the appellant’s immigration solicitors. The first paragraph of the letter stated:

“We have lodged the appeal against conviction at Croydon Crown Court for our above named client who you represent in immigration matters.”

11. Stephen Fidler had not represented the appellant at his trial. On 27 January 2011 an advocate at that firm had advised the appellant that he had grounds to appeal against his conviction having regard to the way his defence at trial was conducted.

12. When the case came before the panel on 12 August counsel then representing the appellant informed it:-

a. there was no further documentary evidence about the appeal or the date it was lodged;
b. inquiries with the Croydon Crown Court indicated that its records revealed that it had been received on 12 February, while inquiries with the Court of Appeal indicated that it had received the notice on 11 February.

13. The panel concluded that there was nothing new to indicate that the appeal had been lodged with the Croydon Crown Court before 4 February 2011. This was acknowledged by the advocate who nevertheless submitted that the appeal should be adjourned to await the outcome of the application.

14. The appellant now submits that on this evidence it was not open to the panel to conclude that the appeal had not been lodged before 4 February 2011.

15. We disagree. Whilst it was open to the appellant to have substantiated his ground of appeal before the panel by producing evidence from Stephen Fidler of a Notice of Appeal, the date and method of service, he did not do so.

16. The date of service of a notice of appeal is determined by reference to rule 4.10 of the Criminal Procedure Rules 2010 that provide:

“Date of Service
4.10.—

(1) A document served under rule 4.3 or rule 4.8 is served on the day it is handed over.
(2) Unless something different is shown, a document served on a person by any other method is served—
(a) in the case of a document left at an address, on the next business day after the day on which it was left;
(b) in the case of a document sent by first class post or by the equivalent of first class post, on the second business day after the day on which it was posted or dispatched;
(c) in the case of a document served by document exchange, on the second business day after the day on which it was left at the addressee’s DX or at a correspondent DX;
(d) in the case of a document transmitted by fax, e-mail or other electronic means, on the next business day after it was transmitted; and
(e) in any case, on the day on which the addressee responds to it if that is earlier.”

17. Where service is effected by First Class post, the date of service is deemed to be the second day after posting unless something different is shown. There is nothing to suggest that Fidlers had sent out a notice before 4 February. If the firm had sent the notice by post on 4 February (a Friday) it should have arrived on 8 February. In fact the information before the panel was that the earliest date of receipt by either court was 11 February suggesting that actual posting had not taken place until the week beginning 7 February.

18. On the information before it, the panel was not only entitled but obliged to conclude that no notice had been served on the court before the date of the deportation decision. The Secretary of State was accordingly entitled to proceed on the basis of the notice served on 4 February 2011.

19. There is a further point. Whenever the notice of appeal had been sent following the advice of 27 January 2011, it would have been considerably beyond the 28 days from conviction laid down by the s. 18(2) of the Criminal Appeal Act 1968. No appeal against conviction could proceed unless and until the Court had decided to extend time for giving the notice pursuant to s. 18(3) of the 1968 Act and Rule 65(4) of the Criminal Procedure Rules 2010 or its successors. Is service of an out of time application to extend time for service of the notice of appeal, the institution of an appeal for the purpose of s. 34(2)(a) of the 2007 Act?

20. Ms Gough for the respondent points out that by s. 34(3) of the 2007 Act the draftsman had discounted an out of time application for the purpose of s. 34(2)(b) of the 2007 Act and the calculation of whether an appeal could be brought. Ms. Rothwell responds that this provision does not apply to s. 34(2)(a) of the 2007 Act and was therefore irrelevant to the question whether an appeal had been instituted when an application for permission to appeal had actually been lodged.

21. We should apply the words of s. 34 in the light of its object and purposes. We conclude it is a section whose function is to make clear when the Secretary of State can and cannot serve a deportation decision. If a decision is served but subsequent information comes to light, it is open to the decision-maker to withdraw or revoke it under s. 34(4) or to consent to an adjournment of an appeal pending the determination of an application for permission to appeal. That is a matter of the lawful exercise of discretion: if the appellant’s construction of the statute is right, service of a deportation decision can be prevented by a purely opportunistic service of an out-of-time application for permission to extend time and appeal without any basis for either. We consider it unlikely that Parliament intended this to be the case in a provision headed “Timing” where it seems that clarity was intended as to when a decision can be served.

22. In our judgment, s. 34(2) read as a whole means that the Secretary of State can serve a decision to deport after 28 days from conviction unless by the end of that period an application has been instituted to the Court of Appeal by service of a notice and that application has not been determined or withdrawn. The 28 day period can be shortened if the claimant informs the Secretary of State in writing that there will be no appeal. If no appeal has been lodged before the expiry of the 28 days, then a late application for permission to appeal out of time does not prevent the Secretary of State from serving the notice to deport. We conclude that Parliament did not expressly apply s. 34(3) to s. 34(2)(a) of the 2007 Act because it did not consider there was a need to as it did not contemplate that the lodging of application for permission to appeal out of time was the institution of an appeal within the section. The answer to the question posed at the end of paragraph 19 is accordingly ‘no’.

23. For both reasons (or either) ground 1 fails. If there is an out of time application, a claimant can serve it on the Secretary of State and invite her to defer service of a decision or agree an adjournment of an appeal but there is no statutory bar to a notice being served.

Ground 2: Refusal to transfer hearing

24. On 12 August 2011 the appellant repeated an application for transfer of the hearing from Newport to London to facilitate the attendance of his mother. The panel refused the application, pointing out that similar applications had been made on 30 June and 25 July, on the last occasion accompanied by a statement from his mother stating that her movements are seriously restricted and she is largely wheelchair-bound. The applications were refused in the absence of medical evidence indicating that the appellant’s mother was unable to travel to Newport in her present medical state. On 10 August the same application was renewed by fax with a letter from a treating physician Dr Williams. Whilst explaining her long-term condition this letter did not suggest that the mother could not travel to Newport. Indeed it indicated that her condition had shown a great of deal of improvement over the past few years. The panel noted that the mother had been able to travel from E17 to see Dr Williams in Waterslade in Kent and had been to visit the appellant at one of the prisons he was detained in.

25. If the appellant’s mother was still using a wheelchair in August 2011 (as to which there was no evidence), there was no reason to suggest that she could not make the journey by train to Newport and then access the hearing centre. A shortage of funds to travel was never said to be a problem.

26. We conclude on the state of the information before them that the panel was entitled to refuse this application for a fourth time and the position had been made crystal clear by the fax of 10 August rejecting the last such application.

27. There was no unfairness to the appellant in this decision. He was able to rely on his mother’s written statement that was not subject to cross examination. The panel did not give diminished weight to what she was telling them by reason of her non-attendance. It was fully aware of and took into her account her contribution to the case. We reject the submission that the panel made an error of law by their failure to accede to this late repeated application, made without the material that had been previously indicated would be needed to support it. This ground also fails.

Ground 3: Article 8

28. Ms. Rothwell finally submitted that whereas the Secretary of State had accepted that private life was engaged in this case, the panel fell into error in reaching a different conclusion. This error was not saved by its consideration of proportionality in the alternative as there was no evidence of a balancing exercise or the structured decision making commended in R v SSHD ex parte Razgar [2004] UKHL 28, [2004] 2 AC 368.

29. We think the panel’s decision on this question might have been better expressed. The appellant was aged 35 at the time of the decision. He had shared a home with his mother for some 11 months before his arrest during which time he had given her some support as a son with her health and mobility problems caused by her rheumatoid arthritis. It was a perfectly sensible conclusion of both the Secretary of State and the panel to conclude that this degree of support over this period of time provided to and by mature adults was not an aspect of family life within the meaning of Article 8 (1) and the case law on the question. We can, however, see no reason to disagree with the respondent’s assessment that this was evidence of private life and the panel did not give any.

30. Neverthess the real question in this case is whether it was private life to which respect should be afforded and/or whether it was private life of such a nature and the consequences of removal so serious that the immigration decision could be said to be an interference with it - see Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 247 (IAC). Such an assessment needs to be made in the context of the case as a whole.

31. It is now necessary to consider the circumstances of the appellant’s stay in this country and the nature of his criminal offending. The following points emerge from the sentencing judge’s remarks:-

a. From 2003 to 2009 the appellant’s elder brother and the other conspirators had been running a fraudulent operation where false documentation was issued suggesting that overseas students were studying for an educational course within the meaning of the Rules at Thames College.
b. Fees of some £3 million had been collected by the conspirators in pursuit of this scheme to deceive the Home Office into granting entry clearance documents and extensions of stay. The college provided no such courses.
c. The appellant was himself aware of the bogus nature of the college and the courses it claimed it was running as he was a junior partner in the conspiracy from 2008 until his arrest. He was an enthusiastic recruit to the fraud and played his role in it at the instigation of his brother.
d. This was a very serious offence because it was not merely high value fraud, it facilitated the admission of foreign nationals to the United Kingdom who had no basis to be here and it deceived the Home Office into granting extensions of stay on a false basis. It seriously undermined the whole scheme of immigration control and public confidence in immigration decision making.

32. From this it is apparent that the appellant himself was a beneficiary of a fraudulent scheme and he had no lawful basis of stay in the United Kingdom. He had not come to the United Kingdom as a family member to look after his mother. She had been able to cope for a number of years without him, and had coped when both brothers were in prison. Her mobility was improving. At the time of the decision she had been granted successive extensions of stay as a medical visitor but it was always open to her to join her sons and return to her husband in Bangladesh who was said to be a man of some financial substance and who supported her here.

33. In summary, the appellant had resided in the United Kingdom for eleven months before his arrest having entered on a visa that had been obtained by deception that he was a genuine student at Thames College. The fact that leave to enter or remain was obtained by false documents and representations is a highly material consideration in the assessment of Article 8 private life. This was not a case where irregular entry had to be made as an asylum seeker, but it appears that the appellant had entered as part of his brothers’ fraudulent scheme.

34. In our judgment any reasonable assessment of this case would have led to the conclusion that there was no interference with the right to respect for private life within the meaning of Article 8(1) applying the structured approach in Razgar and Omotunde (above). We therefore conclude that the panel was entitled to conclude that this was not a case where the interference needed justification albeit that there was some private life enjoyed between the appellant and his mother while she remained here.

35. Moreover, the panel was right to conclude that the public interest case for deportation of the appellant was a compelling one for the reasons given by the panel, acknowledging the sentencing remarks of the judge and the Secretary of State’s reasons in the case. Whilst Parliament has legislated so that any foreigner who commits a crime as an adult is liable to deportation subject to the human rights exception if a sentence of at least twelve months is imposed, the proportionality of the justification for interference with family and private life is not equal in all such cases.

36. Under the present legislative arrangements the assessment of proportionality on appeal is for the Tribunal judiciary having regard to the strength and nature of the family and/or private life on the one hand and the legitimate aim on the other and to the strength of this case for deportation as a fair balance and as being necessary in support of that aim.

37. The legitimate aim of the prevention of crime is not confined to criminals who are likely to re-offend. A sequence of decisions before and after the passage of s.32 of the UK Borders Act 2007 makes clear that in very serious cases affecting public confidence in the criminal justice and immigration systems, deportation of offenders has a legitimate role of play in the deterrence of others who might be minded to offend: see for example N (Kenya) [2004] EWCA Civ 1094 and OH (Serbia) [2008] EWCA Civ 694.

38. The Secretary of State no longer has a policy that distinguishes between classes of offences and offenders who are potentially liable to automatic deportation, but the evidence recorded in the decision of Samaroo v SSHD [2001] EWCA Civ 1139 remains a helpful source of information for judges to consider in support of their own assessments. In addition to those classes of very serious offences that gravely perturb public safety and confidence in the law: serious sexual violence, the deliberation infliction of serious bodily harm on another, the use of firearms and related dangerous weapons, persistent and organised fraud, trafficking of drugs or people, commercial supply of class A drugs, there is conduct that is not merely serious crime but undermines immigration control as well, of which this case is an exemplar.

39. In our judgment the closer the offending is connected to patterns of immigration, as importation of drugs, trafficking of people and facilitating illegal entry may all be, the stronger the case for deterrence by marking out society’s rejection of such conduct by deportation as a supplementary preventive measure to the sentence actually served. This does not mean that only in these classes or in all of these classes will deportation be proportionate. Where there is genuine family life between the claimant and a spouse/stable partner and the welfare of minor children are at stake, serious obstacles may still prevent removal, particularly where the other family member is a British national who can be reasonably expected to want to continue residence in their country of nationality.

40. However, there is no family life engaged in this case; there are no minor children to consider; none of the those affected by deportation are British, and it is plainly still open to the appellant’s mother to join her husband in Bangladesh albeit that she now has the right of indefinite residence here. The appellant had limited leave to enter and remain infected by fraud and has committed a serious offence that undermines immigration control and respect for the law intimately connected to his own admission to the country. Not only was the panel entitled to conclude that deportation was justified, on the evidence before it, no other conclusion was reasonably open to it.

41. In the circumstances none of the grounds relied on demonstrate that the panel made an error of law, and any lack of clarity on the question of whether there was private life was marginal and incapable of having any impact on the decision.

42. Overall we conclude that the panel made no material error of law in the decision to which it came. This appeal is accordingly dismissed.

Signed

Mr Justice Blake
President of the Upper Tribunal
Immigration and Asylum Chamber