[2008] UKAIT 27
- Case title: AA (Spent convictions)
- Appellant name: AA
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Pakistan
- Judges: Mr C M G Ockelton, Mr J Freeman
- Keywords Spent convictions
The decision
AA (Spent convictions) Pakistan [2008] UKAIT 00027
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 22 January 2008
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Freeman
Between
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr M Khan, Legal Action Forum
For the Respondent: Mr. C. Avery
Convictions that are ‘spent’ for the purposes of the Rehabilitation of Offenders Act 1974 should not normally be the subject of reference in appeals before the Tribunal. The exception is in s 7(3) of the Act, which allows spent convictions to be proved if the interests of justice require it: it is for the Respondent to prove that they do.
DETERMINATION AND REASONS
1. This is a case where the Tribunal has ordered reconsideration of a decision of Immigration Judge McWilliam, sitting at Taylor House on 15 October 2007, allowing on long residence and article 8 grounds an appeal by a citizen of Pakistan. The senior immigration judge who considered the application on the papers identified an arguable error of law in taking account of a conviction of the appellant’s which was spent by reason of the Rehabilitation of Offenders Act 1974; but he also pointed out that some of the appellant’s apparent 14-year residence in this country might fall to be excluded under paragraph 276B(i)(b) of the Immigration Rules.
History
2. The relevant dates are as follows:
09.10.1989 appellant given leave to enter as student
17.05.1991 leave to remain as working holiday-maker till 27.06.1993
10.05.1993 last enters this country: leave to remain continued under s. 3(3)(b) of the Immigration Act 1971
09.06.1993 applies for leave to remain as student
28.06.1993 leave to remain refused
03.11.1993 applies for leave to remain as husband of British citizen
03.11.1994 leave to remain refused
05.02.1997 sentenced to 3 months’ imprisonment for attempting to leave this country on false Belgian passport
10.02.1997 appeal against refusal of leave to remain as husband dismissed
13.03.1997 police notify Home Office of conviction and sentence
22.04.2002 applies for indefinite leave to remain as long resident
16.05.2002 indefinite leave to remain refused
12.11.2003 makes further application for indefinite leave to remain
24.08.2007 further application refused, with notice of liability to removal
Qualifying residence
3. On 24 August 2007, the date of the decision under appeal, it is now accepted that the appellant had been continuously resident in this country since 10 May 1993, more than the 14 years required under paragraph 276B(1)(b) of the Rules. That sub-paragraph goes on to exclude:
“… any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from the United Kingdom.”
In this case no deportation notice, nor notice of any decision to remove, was ever served; and no notice of liability to removal was given till the date of the decision under appeal. Despite the making of two appealable, and one unappealable immigration decisions between the appellant’s last arrival and that date, Mr Avery conceded that no notice of liability to removal was given during that time either. It follows that the appellant is qualified for indefinite leave to remain as a long resident, unless there are public interest reasons why that would be undesirable, in terms of paragraph 276B (ii).
Public interest reasons
4. Mr Avery also helpfully conceded that there were no public interest reasons for the appellant not to be allowed to stay, except for the facts revealed by his conviction. He did submit that the Tribunal was entitled to take account of those independently of that conviction; but no other evidence of the appellant’s misconduct with the Belgian passport was offered: we shall deal with this point when we have discussed the effect of the conviction itself. The general position is set out in s. 4 of the 1974 Act:
“(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—
(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction …”
5. For the avoidance of any possible doubt, s. 6 of the Act provides:
“For the purposes of this section and section 7 below “proceedings before a judicial authority" includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person having power—
(a) by virtue of any enactment, law, custom or practice …
to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.”
Following table A under s. 5 of the 1974 Act, the rehabilitation period for someone over 18 on conviction, and sentenced to imprisonment for no more than six months, is one of seven years. It follows that this appellant’s sentence of three months’ imprisonment in 1997 was spent well before the date of the decision under appeal in 2007, and, subject to any of the exceptions provided by s. 4, he was entitled to be treated as someone who had never committed the offence with the Belgian passport in the first place. Subject again to those exceptions, that is the answer to Mr Avery’s proposed reliance on the facts underlying the conviction.
Exceptions
6. Section 8 of the 1974 Act applies to defamation actions, and we are not concerned with it. Section 7(1) applies to various procedures following a conviction: that is, for
a) pardons, and quashing or commutation of convictions or sentences;
b) enforcement of fines or other payments;
c) breach of conditions or requirements of the sentence;
d) disqualifications, disabilities, prohibitions or other penalties lasting beyond the rehabilitation period.
None of (a), (b) or (c) applies to this case, which involves a decision leading to notice of liability to removal. The full text of what exception (d) applies to follows:
“the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition or other penalty the period of which extends beyond the rehabilitation period applicable in accordance with section 6 above to the conviction.”
That does not in terms apply in this case either; but it may be helpful if we give our view, even though not necessary to the decision in this case, as to the effect of that exception in deportation cases. Provisionally we think a recommendation for deportation by the sentencing judge, which is treated, at least for appeal purposes, as part of the sentence, would fall outside the exception for that reason. As for a decision to deport on “conducive” grounds by the Secretary of State, that is something to which the person concerned is liable (it being discretionary), rather than subject to under the immigration legislation. It follows that we do not think exception (d) would apply in deportation cases either.
4. Section 7(2) of the 1974 Act applies to types of proceedings (other than those following the conviction itself) where evidence of spent convictions may be received. Here exception (a) relates to criminal proceedings, and (b), (bb), (c), (cc) and (d) to other types of proceedings with which we are not concerned. Exceptions (e) and (g) have been repealed, and (f) provides an exception where the party or witness concerned consents to admission of the spent conviction, which does not arise here either. No order has been made by the Secretary of State under s. 7(4) to exclude immigration proceedings generally from the operation of s. 4(1); so the only generally relevant exception from its opinion in such proceedings is provided by s. 7(3).
Interests of justice
5. Section 7 (3) of the 1974 Act provides as follows: (we have left out the exceptions under s. 7 (2), s. 7 (4) and s. 8, for the reasons already given):
If at any stage in any proceedings before a judicial authority in Great Britain … the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person’s spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions.
6. So far as the present appeal is concerned, it was for the Home Office to satisfy the judge that she could not do justice without admitting the appellant’s spent conviction. They did not attempt this task, or even draw her attention to the statutory provision which made it necessary. The use of ‘require’ as well as ‘admit’ suggests that it is quite open to a judge to consider the interests of justice for herself in this connexion. Again she did not do so; and to rely on the spent conviction as she did, but not consider whether justice could be done without it, was in our view an error of law. Since no other substantial reason has been put forward for the appellant’s not being entitled to indefinite leave to remain as a long resident, it was clearly a material error of law, unless consideration of the interests of justice would have been bound to result in evidence of the conviction being admitted.
7. It follows that we need to consider whether justice could not be done in this case without admitting evidence of this appellant’s ten-year old conviction and sentence of 3 months’ imprisonment for trying to leave this country on a false Belgian passport, on which the Home Office had taken no action at the time, nor made any attempt to secure his removal following it for 10½ years after. In our view it is enough to put the question in those terms, not only to see that it was by no means bound to lead to the admission of the evidence, but to answer it in this appellant’s favour. Other sets of facts may well lead to different decisions in cases of this kind on the operation of s. 7(3); but in this case the result is that the appeal must be allowed.
The original Tribunal made a material error of law and we substitute a determination allowing the appeal.
Senior Immigration Judge Freeman
Date:
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 22 January 2008
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Freeman
Between
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Mr M Khan, Legal Action Forum
For the Respondent: Mr. C. Avery
Convictions that are ‘spent’ for the purposes of the Rehabilitation of Offenders Act 1974 should not normally be the subject of reference in appeals before the Tribunal. The exception is in s 7(3) of the Act, which allows spent convictions to be proved if the interests of justice require it: it is for the Respondent to prove that they do.
DETERMINATION AND REASONS
1. This is a case where the Tribunal has ordered reconsideration of a decision of Immigration Judge McWilliam, sitting at Taylor House on 15 October 2007, allowing on long residence and article 8 grounds an appeal by a citizen of Pakistan. The senior immigration judge who considered the application on the papers identified an arguable error of law in taking account of a conviction of the appellant’s which was spent by reason of the Rehabilitation of Offenders Act 1974; but he also pointed out that some of the appellant’s apparent 14-year residence in this country might fall to be excluded under paragraph 276B(i)(b) of the Immigration Rules.
History
2. The relevant dates are as follows:
09.10.1989 appellant given leave to enter as student
17.05.1991 leave to remain as working holiday-maker till 27.06.1993
10.05.1993 last enters this country: leave to remain continued under s. 3(3)(b) of the Immigration Act 1971
09.06.1993 applies for leave to remain as student
28.06.1993 leave to remain refused
03.11.1993 applies for leave to remain as husband of British citizen
03.11.1994 leave to remain refused
05.02.1997 sentenced to 3 months’ imprisonment for attempting to leave this country on false Belgian passport
10.02.1997 appeal against refusal of leave to remain as husband dismissed
13.03.1997 police notify Home Office of conviction and sentence
22.04.2002 applies for indefinite leave to remain as long resident
16.05.2002 indefinite leave to remain refused
12.11.2003 makes further application for indefinite leave to remain
24.08.2007 further application refused, with notice of liability to removal
Qualifying residence
3. On 24 August 2007, the date of the decision under appeal, it is now accepted that the appellant had been continuously resident in this country since 10 May 1993, more than the 14 years required under paragraph 276B(1)(b) of the Rules. That sub-paragraph goes on to exclude:
“… any period spent in the United Kingdom following service of notice of liability to removal or notice of a decision to remove by way of directions under paragraphs 8 to 10A, or 12 to 14, of Schedule 2 to the Immigration Act 1971 or section 10 of the Immigration and Asylum Act 1999 Act, or of a notice of intention to deport him from the United Kingdom.”
In this case no deportation notice, nor notice of any decision to remove, was ever served; and no notice of liability to removal was given till the date of the decision under appeal. Despite the making of two appealable, and one unappealable immigration decisions between the appellant’s last arrival and that date, Mr Avery conceded that no notice of liability to removal was given during that time either. It follows that the appellant is qualified for indefinite leave to remain as a long resident, unless there are public interest reasons why that would be undesirable, in terms of paragraph 276B (ii).
Public interest reasons
4. Mr Avery also helpfully conceded that there were no public interest reasons for the appellant not to be allowed to stay, except for the facts revealed by his conviction. He did submit that the Tribunal was entitled to take account of those independently of that conviction; but no other evidence of the appellant’s misconduct with the Belgian passport was offered: we shall deal with this point when we have discussed the effect of the conviction itself. The general position is set out in s. 4 of the 1974 Act:
“(1) Subject to sections 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; and, notwithstanding the provisions of any other enactment or rule of law to the contrary, but subject as aforesaid—
(a) no evidence shall be admissible in any proceedings before a judicial authority exercising its jurisdiction or functions in Great Britain to prove that any such person has committed or been charged with or prosecuted for or convicted of or sentenced for any offence which was the subject of a spent conviction …”
5. For the avoidance of any possible doubt, s. 6 of the Act provides:
“For the purposes of this section and section 7 below “proceedings before a judicial authority" includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person having power—
(a) by virtue of any enactment, law, custom or practice …
to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.”
Following table A under s. 5 of the 1974 Act, the rehabilitation period for someone over 18 on conviction, and sentenced to imprisonment for no more than six months, is one of seven years. It follows that this appellant’s sentence of three months’ imprisonment in 1997 was spent well before the date of the decision under appeal in 2007, and, subject to any of the exceptions provided by s. 4, he was entitled to be treated as someone who had never committed the offence with the Belgian passport in the first place. Subject again to those exceptions, that is the answer to Mr Avery’s proposed reliance on the facts underlying the conviction.
Exceptions
6. Section 8 of the 1974 Act applies to defamation actions, and we are not concerned with it. Section 7(1) applies to various procedures following a conviction: that is, for
a) pardons, and quashing or commutation of convictions or sentences;
b) enforcement of fines or other payments;
c) breach of conditions or requirements of the sentence;
d) disqualifications, disabilities, prohibitions or other penalties lasting beyond the rehabilitation period.
None of (a), (b) or (c) applies to this case, which involves a decision leading to notice of liability to removal. The full text of what exception (d) applies to follows:
“the operation of any enactment by virtue of which, in consequence of any conviction, a person is subject, otherwise than by way of sentence, to any disqualification, disability, prohibition or other penalty the period of which extends beyond the rehabilitation period applicable in accordance with section 6 above to the conviction.”
That does not in terms apply in this case either; but it may be helpful if we give our view, even though not necessary to the decision in this case, as to the effect of that exception in deportation cases. Provisionally we think a recommendation for deportation by the sentencing judge, which is treated, at least for appeal purposes, as part of the sentence, would fall outside the exception for that reason. As for a decision to deport on “conducive” grounds by the Secretary of State, that is something to which the person concerned is liable (it being discretionary), rather than subject to under the immigration legislation. It follows that we do not think exception (d) would apply in deportation cases either.
4. Section 7(2) of the 1974 Act applies to types of proceedings (other than those following the conviction itself) where evidence of spent convictions may be received. Here exception (a) relates to criminal proceedings, and (b), (bb), (c), (cc) and (d) to other types of proceedings with which we are not concerned. Exceptions (e) and (g) have been repealed, and (f) provides an exception where the party or witness concerned consents to admission of the spent conviction, which does not arise here either. No order has been made by the Secretary of State under s. 7(4) to exclude immigration proceedings generally from the operation of s. 4(1); so the only generally relevant exception from its opinion in such proceedings is provided by s. 7(3).
Interests of justice
5. Section 7 (3) of the 1974 Act provides as follows: (we have left out the exceptions under s. 7 (2), s. 7 (4) and s. 8, for the reasons already given):
If at any stage in any proceedings before a judicial authority in Great Britain … the authority is satisfied, in the light of any considerations which appear to it to be relevant (including any evidence which has been or may thereafter be put before it), that justice cannot be done in the case except by admitting or requiring evidence relating to a person’s spent convictions or to circumstances ancillary thereto, that authority may admit or, as the case may be, require the evidence in question notwithstanding the provisions of subsection (1) of section 4 above, and may determine any issue to which the evidence relates in disregard, so far as necessary, of those provisions.
6. So far as the present appeal is concerned, it was for the Home Office to satisfy the judge that she could not do justice without admitting the appellant’s spent conviction. They did not attempt this task, or even draw her attention to the statutory provision which made it necessary. The use of ‘require’ as well as ‘admit’ suggests that it is quite open to a judge to consider the interests of justice for herself in this connexion. Again she did not do so; and to rely on the spent conviction as she did, but not consider whether justice could be done without it, was in our view an error of law. Since no other substantial reason has been put forward for the appellant’s not being entitled to indefinite leave to remain as a long resident, it was clearly a material error of law, unless consideration of the interests of justice would have been bound to result in evidence of the conviction being admitted.
7. It follows that we need to consider whether justice could not be done in this case without admitting evidence of this appellant’s ten-year old conviction and sentence of 3 months’ imprisonment for trying to leave this country on a false Belgian passport, on which the Home Office had taken no action at the time, nor made any attempt to secure his removal following it for 10½ years after. In our view it is enough to put the question in those terms, not only to see that it was by no means bound to lead to the admission of the evidence, but to answer it in this appellant’s favour. Other sets of facts may well lead to different decisions in cases of this kind on the operation of s. 7(3); but in this case the result is that the appeal must be allowed.
The original Tribunal made a material error of law and we substitute a determination allowing the appeal.
Senior Immigration Judge Freeman
Date: