Tribunal decisions

The decision

IMMIGRATION APPEAL TRIBUNAL

MW (Deportation – Jamaica -conducive to the public good) Jamaica [2004] UKIAT 00171

Date of Hearing : 9 June 2004
Date Determination notified:
23 June 2004

Before:

Mr Richard Chalkley, Vice President
Mrs E Hurst, JP
Mr F T Jamieson

Secretary of State for the Home Department
APPELLANT

and

RESPONDENT

Miss A. Holmes, a Senior Home Office Presenting Officer, appeared on behalf of the
appellant and Mr O. Olasoju, a clerk with Doves, Solicitors, appeared on behalf of the respondent.

DETERMINATION AND REASONS

1. The appellant is the Secretary of State for the Home Department. The respondent is a citizen of Jamaica who was born on 20 August 1953 and who has been in the United Kingdom since 1988. She was granted indefinite leave to remain on the basis of her marriage to a British citizen, in August 1991.

2. The appellant appeals, with leave of the Tribunal, against the decision of an Adjudicator, Miss Judith Beale, who in a determination promulgated on 9 September 2003, following a hearing at Taylor House on 12 August 2003, allowed an appeal by the respondent against the decision of the appellant, taken on 20 May 2002, to make a deportation order against her, under Section 3(5)(a) of the Immigration Act, 1971, as amended by the Immigration and Asylum Act, 1999 and to give directions for her removal to Jamaica.

3. The respondent was sentenced to three months imprisonment on 14 April 2003, following her conviction on 17 February 2003, of having on 22 March 20o1, assaulted a police constable in the execution of her duty. On 28 May 2003, the respondent was served with the notice of the appellant's decision, that it would be conducive to the public good to deport the respondent.

3. The respondent appealed. The Adjudicator concluded that the respondent was most unlikely to re-offend. The Adjudicator said, in paragraph 6.2 of the determination :

‘I find that the effect upon her of knowing that she has a life threatening illness and of consequent regular contact with the medical establishment makes it unlikely, in the particular circumstances of this case, that the [respondent] will continue to offend.’

4. The Adjudicator went on to find that, if returned to Jamaica, the respondent would become vulnerable to life threatening AIDS-type illness within a year and that deficiencies in treatment in Jamaica, meant that she was likely to die within two years. She allowed the respondent’s appeal under Article 3. She went on to say that, were it not for the respondent's medical condition, she would uphold the appellant's decision but, given the medical evidence, and without the drug therapy she was currently receiving, she would quickly revert to having full blown AIDS. The Adjudicator allowed the respondent’s appeal under both Article 8 and under paragraph 364 of Statement of Changes in Immigration Rules, HC 395.

5. The grounds of appeal assert that the Adjudicator erred in law by failing to apply the Court of Appeal judgment in K [2001] ImmAR 11 and, as a result, Article 3 could not be breached by the respondent’s removal and, for the same reason, the Adjudicator erred in allowing the appeal under Article 8 and under paragraph 364 of HC 395.

6. In answer to preliminary questions from the Tribunal, Mr Olasoju confirmed that the respondent first became aware of her HIV illness in September 2002. He confirmed that she was subsequently convicted on 14 January 2003, of prostitute loitering. He made it clear that the respondent had denied the charge and did not accept that she had been prostitute loitering. He confirmed that, in relation to the Article 3 claim, he was maintaining that the objective evidence showed that as someone suffering from HIV, the respondent would be subjected to violence on her return to Jamaica.

7. Miss Holmes told us that she relied on the grounds of appeal, save for paragraph 2, which was withdrawn. That suggested that the Adjudicator had erred in failing to consider the relevant objective material in her determination. Miss Holmes conceded that no objective material had been served on the Adjudicator by the Secretary of State. Miss Holmes submitted that the Adjudicator should have been familiar with and applied the decision of the Court of Appeal in K [2001] ImmAR 11, which made it clear that, simply because the medical facilities available for the respondent in her home country were inferior to those in the United Kingdom, did not mean that there would be a breach of Article 3 on the respondent’s return. The fact of the matter is that there are medical facilities available in Jamaica to treat the respondent’s condition. Miss Holmes drew the attention of the Tribunal to the decision of the Court of Appeal in N, where the Court decided that an Article 3 case, of the kind claimed by the respondent, must be based on facts,

“which are not only exceptional, but extreme; extreme, that is, judged in the context of cases all or many of which (like this one) command one’s sympathy on pressing grounds.”

8. So far as what might face the respondent on her return to Jamaica, paragraph 5.89 of the CIPU Report quotes Jamaica’s Health Minister as stating in public that, ‘discrimination and stigmatisation’ has resulted in job losses and violence against people battling with AIDS. The island’s Chief Medical Officer has admitted that stigma and discrimination drive people under ground. Paragraph 5.90 reported that violence against individuals suspected, or known to be homosexuals, occurred as, apparently, did violence and discrimination against persons living with HIV/AIDS. However, paragraph 5.90 is not helpful, because it does not describe the extent of the violence against those suffering with HIV/AIDS. Paragraph 5.91, however, suggests that the Ministry of Health’s National HIV/STI Control Programme formally forged a media alliance and launched a campaign to remove a stigma associated with HIV/AIDS virus. Paragraph 5.92 shows that a private NGO established in 1998 by the Ministry of Health to coordinate the national “multisectural response” to the AIDS epidemic in Jamaica, has strong links with the national HIV/STI Control Programme and with representatives from both private and public sector organisations, NGOs and community based organisations. To maintain that the respondent would be the subject of violence, such as to expose her to a risk of Article 3 would, submitted Miss Holmes, require clear objective evidence, which was absent.

9. In relation to the respondent’s Article 8 claim, Miss Holmes submitted that the respondent has family members in Jamaica and any breach of the respondent’s family life would be proportionate. She has extensive criminal convictions gong back over several years and although her last one was, in fact, for prostitution loitering, it was after she had diagnosed as suffering with HIV. The Adjudicator could not have had this in mind when she decided that the risk of the respondent re-offending was unlikely; the respondent had already re-offended. Miss Holmes relied on the Tribunal's decision in M (Croatia)* [2004] UKIAT 00024. She also asked us to note that in paragraph 6.10, the Adjudicator had prefaced her comments by the words ‘Were it not for her medical condition, I would uphold the [appellant’s] decision’. She invited the Tribunal to allow the appeal.

10. We granted Mr Olasoju a brief adjournment, after having given him a copy of the Tribunal’s decision in M (Croatia), in order that he might have time to read it. On resuming the hearing he confirmed to us that he had read the decision.

11. He submitted that Article 3 would be engaged by the respondent’s removal. If she is returned to Jamaica, she will be faced with discrimination and stigmatisation and violence. That is clearly demonstrated, he submitted, by paragraphs 5.89 and 5.90 of the CIPU Report. It has to be borne in mind that the respondent is receiving support in the United Kingdom and that she will need support in Jamaica. It will become known on her return to Jamaica, that the respondent is suffering from HIV, because she will need to receive medical treatment. He submitted that the respondent is in exceptional circumstances. She requires support to take her medicine in the United Kingdom and will continue to do so in Jamaica. Her family are helping her to face her illness in the United Kingdom and she has a child, grandchild and siblings living in the United Kingdom. She looked after her grandchild while her daughter is currently receiving therapy. As to the respondent’s conviction, the last one was in January 2003. The hearing before the Adjudicator was in August 2003 and when the Adjudicator held that it was unlikely that the respondent would continue to offend, she had looked at the situation as it was following 14 January 2003.

12. He submitted that there was a risk of her being subjected to violence on her return and that the decision of the Secretary of State was wrong. He invited us to uphold the Adjudicator's determination.

13. We reserved our determination.

14. We have very considerable sympathy for the respondent. In September 2002, the respondent was diagnosed as suffering from chronic HIV disease and has subsequently been diagnosed as having AIDS. The appellant's decision to make deportation order was taken on 28 May 2003. The Secretary of State was not satisfied that there existed any compassionate, or compelling factors, sufficient to outweigh the serious nature of the respondent's convictions. The evidence before the Secretary of State and before the Adjudicator was that the respondent was convicted on 14 April 2003, of having assaulted a police constable on 22 March 2001, in the execution of her duty. The respondent was sentenced to be imprisoned for three months. The respondent’s list of previous convictions are numerous and start with a conviction on 26 February 1991, of possession of controlled drugs. Other than six failures to surrender to her bail, four charges of possession of an offensive weapon, one charge of theft (for which she received a prison sentence of six months) and one charge of causing actual bodily harm, the respondent’s other thirty or so convictions are for prostitute loitering. The most recent was on 14 January 2003.

15. The Tribunal were very disturbed to observe that, having been diagnosed as suffering with chronic HIV on 10 September 2002, the respondent should be subsequently convicted of prostitute loitering. She could not have been unaware of the risk she was taking in infecting others.

16. We have very carefully considered all the evidence before the Adjudicator and carefully read the Adjudicator's determination. We have also read and considered the April 2004 Jamaica Country Report. We have concluded that we must allow the Secretary of State's appeal.

17. Dealing first with the respondent’s Article 3 claim, the Adjudicator said at paragraphs 6.5 and 6.6 the following:

‘6.5 There is no reliable evidence about the availability of the treatment the [respondent] requires in Jamaica. I am aware that anti-retroviral drug therapy is very expensive. I consider it highly probable, as is said, for the [respondent] that while the drugs may be available there, they can be accessed only by those who can pay for them, which does not include the appellant. Moreover, I consider it very unlikely indeed that anything like the level of monitoring available to the [respondent] in the UK would be available to a person with her limited means in Jamaica.

6.6 The result of this, I find, is that the alternatives for this [respondent] are stark, and are set out in Dr Hutchinson’s letter. If she remains in the UK, she has a real likelihood of remaining well under the therapy she is receiving for the foreseeable future. If she is deported to Jamaica, the only treatment she has any real likelihood of being able to access is treatment for opportunistic infections. Dr Hutchinson’s expectation is that she would return to her lowest CD4 count within a few months of stopping anti-retroviral treatment, and would be vulnerable to life-threatening AIDS-type illnesses within a year. This is not a case where deficiencies in treatment would mean an uncertain future in Jamaica or a possible reduction in life-expectancy of some unquantifiable amount. If she remains in the UK she will probably live, despite her HIV status; if she is returned to Jamaica she is in fact likely to die within two years. As is well-known, death from AIDS is particularly traumatic. I find that to subject the [respondent] to this high likelihood of deporting her to Jamaica and so separating her from her family does reach the high threshold of inhumane treatment under Article 3 ECHR, and would therefore constitute a breach.’

18. It appears that the Adjudicator may well have confused Article 8 issues with Article 3, but, nonetheless, we are satisfied that, had the Adjudicator properly had regard to the Court of Appeal decision in K, she could not have found a breach of Article 3 for the reasons she did. The Court of Appeal have since given their decision in N. It is clear that the Adjudicator was wrong to allow the Article 3 claim for the reasons she did.

19. However, it is now being maintained on behalf of the respondent that if she is returned to Jamaica there is a strong likelihood that she will be subjected to discrimination and stigmatism and also a risk of violence. It is deplorable in this day and age that people suffering with AIDS should face discrimination. However, we noted from paragraph 5.89 that in 2001, the Jamaica National AIDS Committee proposed changing some twenty laws that, activists said, discriminated against people affected by HIV/AIDS. The head of Jamaica AID Support said, ‘The proposals are about the sanction of the Public Health Act to cover care, support and prevention of HIV AIDS. It is about care and support for those with the disease and prevention for those without.’ It is clear that the government are aware of the discrimination and stigmatisation suffered by people with AIDS and it is clear from paragraphs 5.91 and 5.92, that the government are trying to take steps to remove the stigma associated with HIV/AIDS virus. There clearly has been violence directed against individuals suspected, or known to be homosexuals and violence and discrimination against people living with HIV/AIDS. However, on return to Jamaica, there is no reason why anyone should become aware of the respondent’s illness. She will need to seek medical assistance, but there is no credible evidence before us that having done so, it is likely to become public knowledge that she is suffering from HIV. We do not accept that the respondent's removal from the United Kingdom will therefore breach her rights under Article 3.

21. So far as her rights under Article 8 are concerned. The Adjudicator really should have dealt with the respondent's claim using the step-by-step approach recommended by the Tribunal in Nhundu and Chiwera (01/TH/00613). Had she done so, she might well have concluded that, given that her siblings and her daughter were all over the age of twenty-one, in the absence of any other evidence, it could not be said that she enjoys any family life (Kugathas v Secretary of State for the Home Department [2003] INLR 170). However, the respondent clearly does enjoy a private life in the United Kingdom. It is clear that on the respondent’s removal there will be an interference with her family life. Such interference pursues the legitimate aim and is in accordance with the law. The question is whether such interference is proportionate.

22. The Adjudicator was clearly of the view that had it not been for the respondent’s medical condition she would have found that the respondent’s removal would be proportionate. At paragraph 6.10 she said:

‘Against this, I accept that her criminal offences, though each one may be relatively minor, cannot cumulatively be dismissed as of little weight. It appears from her record that she has been offending persistently since before she was granted indefinite leave to remain and her evidence suggests that, although she has only one conviction for possession of drugs, she has in fact been using them regularly. Were it not for her medical condition, I would uphold the [appellant’s] decision, but the fact, now confirmed by medical evidence, that she has HIV and without the drug therapy she is receiving would quickly revert to having full blown AIDS, does in my judgment require a complete re-assessment of the balance between what, for shorthand, I will call the public and the private interest. This exercise the [appellant] did not carry out. I find that the combination of her illness and its needs, the length of time she has been in the UK, and the presence of her family here, together outweigh the public interest in deporting her, both under the Immigration Rules and under Article 3 ECHR’.

23. At paragraph 28, of M (Croatia) * [2004] UKIAT 00024, the Tribunal said:

‘The starting point should be that even if in the circumstances the removal could reasonably be regarded as proportionate, whether or not the Secretary of State has actually said so or applied his mind to the issue, it is lawful. The Tribunal and the Adjudicator should regard Shala, Edore and Djali as providing clear exemplification of the limits of what is lawful and proportionate. They should normally hold that a decision to remove is unlawful only when the disproportion is so great that no reasonable Secretary of State could remove in those circumstances. However, where the Secretary of State, e.g. through a consistent decision-making pattern or through decisions in relation to the same family, has clearly shown where, within the range of sensible responses his own assessment would lie, it would be inappropriate to assess proportionality by reference to a wider range of possible responses than he in fact uses. It would otherwise have to be a truly exceptional case, identified and reasoned, which would justify the conclusion that the removal decision was unlawful by reference to assessment that removals in the range of reasonable assessments are proportionality. We cannot think of one at present; it is simply that we cannot rule it out. This decision is starred for what we say about proportionality.’ (Our emphasis)

24. We find, so far as the respondent’s Article 8 claim is concerned, that the decision to remove the respondent is lawful, because it cannot be said that the disproportion is so great that no reasonable Secretary of State could remove the respondent in the circumstances.

25. So far as her appeal under paragraph 364 is concerned, we note what the Adjudicator said in paragraph 6.2. Towards the end of that paragraph she said:

“She is subject to regular weekly medical monitoring and as long as that continues (which it will for the foreseeable future if she remains in the UK) I find that she is most unlikely to re-offend. She also says that she is receiving counselling and is due to receive treatment for her drug addiction. I find that the effect upon her of knowing that she has a life threatening illness and of regular contact with the medical establishment, makes it unlikely, in the particular circumstances of this case that the [respondent] will continue to offend.”

26. Neither we, nor the Adjudicator, have been supplied with a copy of the pre-sentence report that would have been prepared in respect of the respondent before she was sentenced on 14 April 2003, to a term of six months imprisonment. In paragraph 6.1 of the determination, the Adjudicator had noted the respondent’s previous convictions and noted that the offence of assaulting a police constable in the execution of her duty, was far from being the most serious kind of violence. She noted that the only other offence of violence in the respondent's record, was a charge of occasioning actual bodily harm, which was ordered to lie on the file in June 2001. The only drugs conviction against the respondent was in February 1991. The Adjudicator noted that the respondent had been fined on two occasions for possession of an offensive weapon, cautioned once and on one occasion sentenced to six months imprisonment when, at the same time, she was also given a six months sentence for theft. She noted that the vast majority of her convictions were for prostitution and loitering and, noted the Adjudicator, were very much of the end of the scale of sexual offences, as is demonstrated by the sentences imposed which, apart from two cases, were all fines. While individually, none of the offences would justify the making of a deportation order, when viewed cumulatively, they may very well do.

27. However, the Tribunal notes with some alarm that, since having been diagnosed as suffering from chronic HIV disease, the respondent has again been convicted of prostitute loitering, this time on 14 January 2003. Her representative agreed that this was an offence committed by the respondent after she had been advised of her illness. It appears to the Tribunal, therefore, that, contrary to the view taken by the Adjudicator in paragraph 6.2 of the determination, given that subsequent conviction, it cannot be said that the respondent ‘is most unlikely to re-offend’. The Adjudicator was clearly wrong in reaching that assessment, because she had failed to take into account the respondent’s conviction after her illness was diagnosed: she had already re-offended.

28. Paragraph 364 of HC 395 says:

‘364 [subject to paragraph 380] In considering whether deportation is the right course on the merits, public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. [In the cases detailed in paragraph 363A] Deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or remained without authority. Before a decision to deport is reached, the Secretary of State will take into account all relevant factors known to him including:

(1)(a)(ii) length of residence in the United Kingdom;

(iii) strength of connections with the United Kingdom

(iv) personal history, including character, conduct and employment records

(v) domestic circumstances;

(vi) previous criminal record and the major of any offence for which the person has been convicted;

(vii) compassionate circumstances

(viii) any representations received on a person’s behalf.’

29. The respondent’s propensity to re-offend is a matter that is relevant, but of course, it is only one matter that must be considered. We take into account the fact that the respondent has been in the United Kingdom since 1988 and that her son, Ray, who was born in 1976, is in the United Kingdom. We bear in mind that the respondent’s granddaughter, Menisha live in the United Kingdom and that the respondent cares for her while her father is at work while her own mother is undergoing therapy. We note also that three of the respondent’s sisters live in the United Kingdom, as do two of her brothers and that she has no close family members living in Jamaica. However, looking at all the evidence in the round, we have concluded that the interests of the public outweigh the compassionate circumstances of the case and that deportation is the right course on the merits. The Secretary of State’s appeal is allowed.

RICHARD CHALKLEY
VICE PRESIDENT

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