R v. Immigration Appeal Tribunal, Ex parte Marchon

R v IMMIGRATION APPEAL TRIBUNAL ex parte MARCHON

Queen's Bench Division

[1993] Imm AR 98

Hearing Date: 14 October 1992

14 October 1992

Index Terms:

Deportation -- conducive to the public good -- applicant convicted of importing heroin -- no recommendation by the court he be deported -- EEC national -- no suggestion applicant had a propensity to re-offend -- whether Tribunal entitled to conclude that serious nature of offence justified deportation on basis of past conduct alone -- whether in the case of an EEC national that route to deportation could only apply where there was a recommendation by the court when sentencing the offender -- whether in considering that route a second, separate balancing act was required over and above the application of the test in Bouchereau. Immigration Act 1971 s 3(5)(b): Directives 64/221/EEC arts 1, 2(1), 3(1), 3(2): 73/148/EEC arts 1(a), 4(1), 8: HC 388 paras 147, 162.

Held:

The applicant for judicial review held dual Indian and Portuguese nationality. He had been convicted of importing heroin and received a long custodial sentence. The court apparently neither considered or recommended deportation. The Secretary of State however decided to deport the applicant pursuant to s 3(5)(b) of the 1971 Act. When hearing the appeal the Tribunal treated the applicant as an EEC national and considered his case within the context of the relevant directives. There was no suggestion that the applicant had a propensity to re-offend: the Tribunal, following Bouchereau concluded however that the nature and seriousness of the offence was such as to constitute a present threat to public policy: the applicant's appeal was dismissed. On application for judicial review, counsel argued that the "second route", set out in Bouchereau and which the Secretary of State and the Tribunal had followed, was only open where the court recommended deportation. Counsel also argued that in the light of the settled cases, it was necessary, after carrying out the balancing act required by the immigration rules, to carry out a second balancing act, in the case of an EEC citizen in which the factors relevant to the free movement of persons, were considered. Held 1. The Tribunal had not erred in its approach. It was open to it to consider the case in the light of the nature and seriousness of the offence: that course was not restricted to the court sentencing the individual. A recommendation for deportation did not constitute an element of the sentence insofar as the sentence for an offence would be the same in like cases for foreign nationals or United Kingdom nationals. 2. It was not necessary for an explicit second balancing act to be performed: that was done in any event by the application of the test in Bouchereau. 3. The instant case was the clearest of cases where past conduct alone constituted a present threat to the requirements of public policy.

Cases referred to in the Judgment:

Angelo Bonsignore v Oberstadtdirektor of the City of Cologne [1975] 1 CMLR 472: [1975] ECR 297. Rutili v Minister of the Interior [1976] 1 CMLR 140: [1975] ECR 1219. R v Bouchereau [1978] 1 QB 732: [1981] 2 All ER 924. R v Secretary of State for the Home Department ex parte Santillo [1981] 2 All ER 897. R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141. R v Immigration Appeal Tribunal ex parte Tamjid-Nezhad [1986] Imm AR 396. Al-Sabah v Immigration Appeal Tribunal [1992] Imm AR 223. Olavo Marchon v Secretary of State for the Home Department (unreported) (7591).

Counsel:

A Nicol for the applicant; S Catchpole for the respondent PANEL: Henry J

Judgment One:

HENRY J: This is an application for judicial review by the applicant who has both a Portuguese and an Indian passport. The application challenges the determination of the Immigration Appeal Tribunal of 11 February 1991 dismissing his appeal against the Home Secretary's decision to make a deportation order against him under section 3(5)(b) of the Immigration Act 1971 as conducive to the public good that directions for removal to Portugal would be made. The matter arose in this way. On 29 April 1986 he was convicted at Reading Crown Court of conspiracy fraudulently to evade the prohibition of importation of Class A controlled drugs (heroin) and was sentenced to 14 years' imprisonment which on appeal was reduced to 11 years. The conspiracy alleged and proved to the satisfaction of the jury was to import 4.5 kilos of heroin with a street value of, in 1986 terms, some @450,000. The dates of the imports were between January and May 1985. At the time of the commission of the offences the applicant was a consultant psychiatrist at a national health service hospital. The challenge today relates to the deportation order. The question of deportation was apparently never raised either at trial or on appeal. In his notice of 1990 the Secretary of State said this under section 3(5)(b) of the Immigration Act 1971: "On 29 April 1986 at Reading Crown Court you were convicted of drug smuggling and sentenced to 14 years' imprisonment which was reduced to 11 years on appeal. The Secretary of State has considered all the circumstances of your case including the offence of which you have been convicted, and is satisfied that you would pose a threat to the requirements of public policy if you were allowed to remain in this country. He has therefore decided that your deportation would be conducive to the public good." As I have said that was appealed under section 15 of the 1971 Act to the Immigration Appeal Tribunal and that appeal was heard on 6 December 1990. The Tribunal proceeded, and proceeded correctly in my view, to review their requirements under what were the then applicable regulations incorporating the European directive HC 388 of 1989. They had to apply paragraph 147(b) which states: "147. A person admitted in accordance with Part VI of these rules may normally remain in the United Kingdom for 6 months before applying for a 'Residence Permit for a National of a Member State of the EC'. Such a residence permit will be issued if the person:

. . .

(b) has established himself in business or in self-employed occupation or otherwise in accordance with the provisions of Community law relating to the right of establishment and the rights relating to the provision and receipt of services . . ." The applicant was self-employed and had so established himself. He was a national of the member state of Portugal. Paragraph 152 states: "A person who meets the requirements of paragraph 147 . . . (b) . . . may not be deported from the United Kingdom on the ground that removal is conducive to the public good except where this is justified on grounds of public policy, public security or public health." Those statements in the immigration rules reflected the European directives. Directive 73/148 states under article 1(a) that the member state shall, acting as provided in the directive, abolish restrictions on the movement and residence of nationals of a member state who are established or who wish to establish themselves in another member state in order to pursue activities as self-employed persons or who wish to provide services in that state. That covered the applicant. Article 4.1 states: "Each Member State shall grant the right of permanent residence to nationals of other Member States who establish themselves within its territory in order to pursue activities as self-employed persons, when the restrictions on these activities have been abolished pursuant to the Treaty." Then there is the important article 8 which states: "Member states shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health." It is also necessary to refer to directive 64/221. Article 1 provides: "1.1 The provisions of this Directive shall apply to any national of a Member State who resides in or travels to another Member State of the Community, either in order to pursue an activity as an employed or self-employed person, or as a recipient of services". Article 2.1 provides: "This Directive relates to all measures concerning entry into their territory, issue or renewal of residence permits, or expulsion from their territory, taken by Member States on grounds of public policy, public security or public health." Finally, article 3, sub articles 1 and 2, provide: "Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. 2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures". Provisions of article 3.1 and 3.2 were examined by the European Court of Justice in the case R v Bouchereau [1978] 1 QB 732. It is the statement of general principle in that case that we are here concerned with. I will go straight to page 759 of the report. The question that the court was deciding was: ". . . whether the wording of article 3(2) of Directive No 64/221, namely, that previous criminal convictions shall not 'in themselves' constitute grounds for the taking of measures based on public policy or public security means that previous criminal convictions are solely relevant in so far as they manifest a present or future propensity to act in a manner contrary to public policy or public security; alternatively, the meaning to be attached to the expression 'in themselves' in article 3(2) Directive No 64/221." the court answered that question in paragraphs 27 through to 30. I will read those paragraphs: "The terms of article 3(2) of the Directive, which states that 'previous criminal convictions shall not in themselves constitute grounds for the taking of such measures', must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction. 28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirement of public policy. 29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy. 30. It is for the authorities and, where appropriate, for the national courts to consider that question in each individual case in the light of the particular legal position of persons subject to Community Law and of the fundamental nature of the principle of the free movement of persons." What the court is there saying is that the Secretary of State must look at the personal conduct of this applicant in the matters leading up to his conviction, that is to say his 1985 drug importing conduct, to see whether that constitutes a present threat to the requirements of public policy. As paragraph 29 makes clear there are two routes whereby past conduct can constitute such a present threat. The first route is where there is judged to be a propensity on the part of the convicted man to act in the same way in the future. That is not the way that this case has been put. Before the Immigration Appeal Tribunal, Mr Gammons, representing the Secretary of State made it clear that the Secretary of State was not relying on any assertion that it had been shown that Mr Marchon had a propensity to act in the same way in the future as his conviction showed he had in the past. The alternative route set out in paragraph 29 was relied on, namely, the words that past conduct alone may constitute such a threat to the requirements of public policy -- past conduct without such a propensity. Though the wording of paragraph 29 of Bouchereau is in my judgment clear it has been challenged in other courts on a number of occasions. First is the Court of Appeal case of R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141. I will read the headnote: "Appeal from judgment of McNeill J dismissing application for judicial review. Applicant was a citizen of St Lucia. Following marriage to a woman settled in the United Kingdom, he was given indefinite leave to remain. The marriage broke down. The applicant remained in touch with children of the union. He then attacked his wife: he was convicted of and imprisoned for wounding with intent. No order by court for deportation but Secretary of State initiated deportation proceedings under section 3(5)(b) of the Immigration Act 1971. On appeal to the Immigration Appeal Tribunal, the appeal was dismissed. The Tribunal accepted that there were other cases in which appellants guilty of more serious offences had, in all the circumstances, had their appeal allowed. The Tribunal, however, taking into account the nature of the offence in this instant case, the mental condition of the appellant and all the facts including compassionate circumstances, concluded that the Secretary of State had exercised his discretion properly. Held: (1) Some offences were of so serious a nature as to justify deportation even if there were no record of previous offences and no great likelihood of the individual re-offending. (2) There was nothing on the record to show that the Secretary of State had acted contrary to the law or immigration rules to bring the case within section 19(1)(a) of the Immigration Act 1971. (3) The Immigration Appeal Tribunal had set out its reasons adequately. (4) To succeed in an application for judicial review the applicant would have had to show that the Immigration Appeal Tribunal's review of the Secretary of State's discretion was so wrong as to be assailable on Wednesbury principles." When dealing with the matter Lawton LJ giving the first judgment said at page 146: "Mr Macdonald has attacked both the Secretary of State's assessment of the situation leading up to his making of the deportation order and the way in which the Immigration Appeal Tribunal dealt with the submissions which were made. So far as the Secretary of State is concerned, his main submission was that the Secretary of State seems to have overlooked the fact that his function was not to add punishment to the punishment inflicted upon the appellant by the Croydon Crown Court, but to consider whether the appellant's continued presence in the United Kingdom was conducive to public good, and was only not conducive to the public good if the appellant was likely to offend again." Then he cites a passage from Donaldson LJ in R v Secretary of State for the Home Department ex parte Santillo [1981] 2 All ER 897 which concludes with the sentence: "This possibility of re-offending, a matter which has to be taken into account under the Bail Act 1976 when considering whether to grant bail pending trial, is a very important factor in deciding whether to recommend deportation and taking account of it is permitted by the directive." Lawton LJ continues after that citation: "Mr Macdonald pointed out that there is nothing in the Secretary of State's statement to the Immigration Appeal Tribunal to show that he took that matter into account at all. The answer to that may well be that what, under the regulations, he had to take into account was not the possibility of re-offending but the nature of the offence of which the appellant was convicted. Mr Macdonald accepted at an early stage of his submissions that the Secretary of State was entitled to be of the opinion that this offence, in the circumstances which I have described, was a serious one. Mr Macdonald also had to accept that there can be offences which are so serious that the fact that the offender is not likely to offend again is immaterial. An example was put to him of the supplier of heroin. So it is a matter really for the judgment of the Secretary of State whether the nature of the offence of which a particular person was convicted should be regarded as so serious as to merit deportation. In my judgment, on reading the statement put forward on behalf of the Secretary of State, that was the view he took. For my part, I can see nothing wrong in the determination which the Secretary of State made." That decision of the Court of Appeal, approved as it has been on subsequent occasions by other divisions of that court and most recently in the case of Al-Sabah v Immigration Appeal Tribunal [1992] Imm AR at 223, is clearly, in the principles that it lays down, binding on me. That was not on the EEC case, but the principles there set out would apply equally. To the same effect explaining the two-route process was the decision of Taylor J, (as he then was), in the case of R v Immigration Appeal Tribunal ex parte Tamjid-Nezhad, [1986] Imm AR 396. At page 401 he says: "It is common ground in this case that there must be shown to be a threat although Mr Vallance points to two possible routes by which one might reach the conclusion that a threat existed. He says that there can be, on the criteria laid down in Bouchereau, a threat; firstly, if there is shown to be in the individual the existence of a propensity to act in the future in the same criminal way as he has in the past and that criminal way would constitute a threat to public policy; secondly, he says that there can be situations where past conduct giving rise to the previous criminal offence or offences can of itself pose a threat, if it is sufficiently grave conduct and it can therefore be said by its gravity to pose a threat to public policy." That was a propensity case but in upholding those submissions the learned judge said this at page 402: "That passage shows that the Tribunal found that a threat existed by the second of the two routes referred to by Mr Vallance, namely, by simply looking at the conduct leading to the previous convictions, assessing the gravity of it and deciding that that gravity in itself posed a threat to public policy; in other words, Mr Vallance submits that the Tribunal, though it incorporated in its determination twice a flawed submission on the part of the applicant advocate appearing for the Secretary of State, arrived at its own conclusions on a correct basis of law and indeed on two bases of law, each of which was a sound one upon which the Tribunal was entitled to find and which the evidence was capable of supporting. For those reasons, Mr Vallance submits that there is no merit in this first submission on the part of the applicant. I agree entirely with the submissions that he has made. It seems to me that the Tribunal correctly directed themselves on the tests that they had to apply, following the case of Bouchereau, and they arrived at their conclusions on both bases said by the European Court to be proper bases from which to conclude that the free movements of workers might be impugned in the particular circumstances of a case where criminal convictions have occurred." That was the approach of the Tribunal in this case. They were referred to the case of Tamjid-Nezhad. They summarized it, as to the two routes, accurately and they said this: "In our view, the offence was of sufficient gravity to pose a present threat to public policy. This was a conviction for a conspiracy to import heroin of considerable street value. We therefore must base our decision on the fact that this conspiracy occurred and reflects the appellant's conduct. The conduct of importation of heroin on this scale must arguably be of such gravity that it poses a threat to public policy. Where it is committed by a medical practitioner, the threat is simply underlined. In our view, therefore, the Secretary of State establishes that under European law, he has the power to deport the appellant." Having found that he had the power the Tribunal then looked at the exercise of the power examined the compassionate circumstances and finally concluded: "As we have said, in our view, the conduct of the appellant is contrary to the interests of society in a fundamental way. On the totality of the evidence before us, therefore, we are of the view that neither the appellant's personal circumstances nor the circumstances of Mrs Marchon are sufficient to outweigh the clear public interest in deportation." The challenge to the Secretary of State's order is basically founded on, as I see it, a reluctance on the part of the applicant to accept that past conduct in 1985 can represent at the date of this applicant's release from prison (or the date when the order was made, whichever is the right date) a threat to public policy. That is a matter which must be accepted, certainly by me sitting in this court, as first Bouchereau and then the decision of the Court of Appeal in Florent and that of Taylor J all show. This offence of heroin importation is clearly in the category of offence that one would expect to use the second route. In those circumstances the law is clear that past conduct alone even without a propensity of further misconduct can be sufficient to constitute a present threat to public policy. The first ground of challenge that the applicant relies on is set out in paragraph 6 of the ground of appeal. I will read that: "In order to address that issue, the Tribunal should have taken into account (but did not) the following: (a) the applicant had been sentenced to a substantial period of imprisonment (even after it was reduced to 11 years by the Court of Appeal); (b) this sentence had not been accompanied by a recommendation for deportation; (c) there was nothing to suggest that the Secretary of State's proposed deportation order would take effect any earlier than after the Applicant had served his sentence; (d) The sentence marked society's condemnation of the conduct of which the Applicant had been convicted." The argument proceeded on the basis that the second route was available only where the deportation had been part of and/or had reduced the sentence served. In my judgment such contentions are untenable. So far as the sentencing court is concerned the sentence for drug importing for a United Kingdom national or a foreign national will in like cases be the same. It cannot be assumed that in normal cases where deportation is ordered the sentence will be any the less. There are entirely different criteria for deportation and the possibility of deportation forms no part of the sentencing process here. The length of the sentence here reflects the gravity of the offence and was unaffected by any assumption either way as to whether or not there would be a deportation order. The matter was simply not raised. Accordingly I do not find anything in the first ground of appeal. The second ground of appeal is to be found in paragraph 7 and reads as follows: "Further or alternatively, the tribunal was required by EEC law (see in addition to Bouchereau, Rutili v Minister of the Interior [1976] 1 CMLR 140 and Bonsignore v Oberstadtdirektor of the City of Cologne [1975] 1 CMLR 472 to consider: (a) whether deportation of the Applicant was 'necessary in a democratic society' to protect public policy and in so doing the Tribunal was obliged to conduct a similar exercise to that required under the European Convention on Human Rights in determining whether the rights protected by Articles 8, 9, 10 and 11 could be interfered with in order to protect the interests set out in Articles 8(2), 9(2), 10(2) and 11(2) respectively; (b) whether deportation of the Applicant was disproportionate to the present threat which he allegedly posed to public policy and/or; (c) whether the threat which he allegedly posed to public policy was sufficiently serious to justify interfering with his fundamental right of movement as a national of a member state." What is there invited by the applicant is for the Tribunal, and before that the Secretary of State, to do a balancing exercise and this is a separate and additional balancing exercise to that set out in rule 162 of HC 388 which reads: "In considering whether deportation is the right course on the merits, the 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 that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects." The main submission by Mr Catchpole for the Secretary of State in relation to this is that effectively that balancing exercise had been done in reaching the test that the directives called on the Secretary of State to apply. He referred in particular in Bouchereau's case to paragraph 30 and then paragraphs 33 to 35. There the principles are set out. They are these. First, the national authority seeking to deport must accept the fundamental principle of freedom of movement -- that must be universally accepted among all community members and strictly construed. But, in deciding whether the circumstances justify recourse to public policy, the European Court recognizes that the answer to that question may vary from one country to another and the national authority there enjoy an area of discretion to decide whether that threshold has been reached. The combination is the test as set out in Bouchereau and as explained in the authorities. The decision of Rutili referred to on behalf of the applicant says no more than that -- see especially page 155. The case of Bonsignore is concerned with a different point, namely whether deportation could be justified pour encourager les autres in terms of general deterrence to others. One sees there, particularly at page 488, paragraph 6: "With this in view, Article 3 of the directive provides that measures adopted on grounds of public policy and for the maintenance of public security against the nationals of member-States of the Community cannot be justify on grounds extraneous to the individual case, as is shown in particular by the requirement set out in paragraph (1) that 'only' the 'personal conduct' of those affected by the measures is to be regarded as determinative. As departures from the rules concerning the free movement of persons constitute exceptions which must be strictly construed, the concept of 'personal conduct' expresses the requirement that a deportation order may only be made for breaches of the peace and public security which might be committed by the individual affected. 7. The reply to the questions referred should therefore be that Article 3(1) and (2) of Directive 64/221 prevents the deportation of a national of a member-State if such deportation is ordered for the purpose of deterring other aliens, that is, if it is based, in the words of the national court, on reasons of a 'general preventive nature'. It seems to me, as I say, that the test as it has been set out itself defines the appropriate balancing exercise as Mr Catchpole has submitted. In applying that test the balancing exercise is done. It follows that in my judgment in relation to ground (a) of paragraph 7 there is no special requirement for such a balancing exercise. It is not necessary to satisfy the Bouchereau requirements and it over-complicates a question that has been accurately posed. As to paragraph (b) the question of proportionality would be addressed in any event and there is certainly nothing to suggest that it was not addressed here. The question of the seriousness of the threat, whether it was sufficiently serious to justify interfering with the fundamental right of free movement as a national of a Member State, would again, applying Bouchereau, obviously in all cases be addressed and there is nothing to suggest that it was not so addressed here. It follows that in my judgment the Tribunal rightly directed themselves on the law and on the Secretary of State's powers and there can be no successful challenge by way of judicial review to their decision. It seems to me also that they and the Secretary of State before them were clearly correct to find as they did on facts that I have outlined and in the reasons given where I have quoted them. Here Mr Marchon, then a doctor, had deliberately attacked the society he had chosen to settle in. He had attacked it by importing an addictive Class A drug that would at best threaten and at worst destroy the health and lives of those who took it. This he did for personal gain out of greed. It seems to me that this is the clearest case of past conduct alone constituting a present threat to the requirements of public policy of the society that he attacked. Accordingly this application must fail.

DISPOSITION:

Application dismissed

SOLICITORS:

Jane Coker & Co, London N17; Treasury Solicitor

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