Sheikh Mohammad Nasser Al-Sabah v. Immigration Appeal Tribunal

SHEIKH MOHAMMAD NASSER AL-SABAH v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1992]Imm AR 223

Hearing Date: 20 December 1991

20 December 1991

Index Terms:

Deportation -- conducive to the public good -- non-EEC citizen -- convictions for drug offences and corruption -- circumstances would not have justified deportation of an EEC citizen -- whether the Secretary of State had been "consistent and fair" in deciding to deport appellant -- whether in the case of a non-EEC citizen the gravity of the offence itself could justify deportation -- whether the guidance to judges on deportation in criminal cases had any relevance to the exercise by the Secretary of State of his discretion in cases reviewed under the immigration rules -- whether the reasons given by the Tribunal for dismissing the appeal were adequate. Immigration Act 1971 ss 3(5)(b), 19: Tribunal and Enquiries Act 1971 s 12, sch 1: EEC Council Directive 64/221 arts 3(1), 3(2): HC 388 paras 34, 69, 78, 81, 84, 86, 146, 147, 152, 162, 164, 167.

Held:

Appeal from Brooke J who had dismissed an application for judicial review of the dismissal, by the Tribunal, of an appeal against the decision of the Secretary of State to deport the appellant following his conviction for drug offences and an attempt, on his arrest, to bribe the police. The appellant was citizen of Kuwait. Counsel argued that if the applicant had been an EEC citizen, he would not, on the facts, have been deported. In deciding to deport him, the Secretary of State accordingly had not been "consistent and fair" as between one individual and another. He also contended that the settled cases which had confirmed that in the case of a non-EEC citizen, the gravity of the offence alone could justify deportation, had been wrongly decided. It was also argued that the reasons given by the Tribunal for dismissing the appeal had been inadequate. For the Secretary of State is was contended that the immigration rules specifically provided for EEC and non-EEC citizens to be treated differently. Held: 1. The immigration rules specifically contemplated the application of different criteria to EEC and non-EEC nationals when deportation was under consideration. 2. Following ex parte Florent, in the case of a non-EEC national, the gravity of the criminal offence of which the person had been convicted could alone, without the possibility of his re-offending, properly lead to a decision to deport him: that was so likewise in Community law. 3. The cases within the criminal law in which guidance was given to judges sentencing in the criminal courts and contemplating a recommendation for [1992]Imm AR 223 deportation, did not lay down any guidelines to be observed by the Secretary of State in exercising his discretion under the immigration rules. 4. The reasoning of the Tribunal, when its determination was read as a whole, was adequately set out: neither its decision or that of the Secretary of State could be attacked on Wednesbury principles.

Cases referred to in the Judgment:

R v Bouchereau [1978] 1 QB 732: [1981] 2 All ER 924. R v Nazari (1980) 2 Cr App R(S) 84: [1980] Crim LR 447: [1980] 3 All ER 850. R v Secretary of State for the Home Department ex parte Santillo [1981] 1 QB 778: [1981] 2 All ER 897. R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141. R v Escauriaza (1987) 9 Cr App R(S) 542: [1988] Crim LR 252. R v Spura (1988) 10 Cr App R(S) 376: [1989] Crim LR 165. Wilson Humberto Toban v Immigration Appeal Tribunal [1988] Imm AR 319. Hukam Said v Immigration Appeal Tribunal [1989] Imm AR 372. Save Britain's Heritage v Number 1 Poultry Limited [1991] 1 WLR 153: [1991] 2 All ER 10. R v Immigration Appeal Tribunal ex parte Sheikh Mohammad Al-Sabah [1992] Imm AR 25.

Counsel:

D Pannick for the appellant; N Pleming for the respondent PANEL: Purchase, Ralph Gibson, Taylor LJJ

Judgment One:

TAYLOR LJ: This is an appeal by Sheikh Mohammad Al-Sabah from the order of Brooke J dated 21 May 1991, refusing his application for judicial review of a decision by the Immigration Appeal Tribunal. The Tribunal had dismissed his appeal against the decision of the Secretary of State for the Home Department to deport him from the United Kingdom. History The appellant was born in 1953. He is a citizen of Kuwait, related to the Emir. He studied in England from 1967 to 1971. Since then, he has visited a number of times on business. He has interests in a firm of bullion dealers, in a construction company based in Kuwait and in a Jersey-based company dealing with real estate in the United Kingdom. Whilst in England as a visitor, he was charged and on 1 February 1989 was convicted at the Central Criminal Court of four offences. He pleaded guilty to count one, supplying cocaine, to count two, possessing cocaine and to count three, possessing heroin. He pleaded not guilty to count four, a charge of corruption, but was convicted by a jury. He was sentenced on count one to 15 months imprisonment, on counts two and three to two months concurrently and on count four to nine months consecutively making two years in all. The judge did not recommend him for deportation, the court's powers to do so apparently not being drawn to his attention. An appeal against sentence was dismissed by the Court of Appeal on 30 June 1989. On 21 August 1989 the Secretary of State gave notice of his decision to deport the appellant pursuant to section 3(5)(b) of the Immigration Act 1971. Section 3(5)(b) [1992]Imm AR 223 provides: "A person who is not a British citizen shall be liable to deportation from the United Kingdom . . .

. . .

(b) if the Secretary of State deems his deportation to be conducive to the public good; . . ." The notice stated: "On 30 January 1989 and 1 February 1989 you were convicted at the Central Criminal Court of supplying a controlled drug, possessing a controlled drug and corruption. In view of these convictions the Secretary of State deems it conducive to the public good to make a deportation order against you". To complete the history, the appellant gave notice of appeal to the Immigration Appeal Tribunal on 23 August 1989. Two days later he was released on parole. After a hearing in December 1989, the Tribunal dismissed his appeal on 14 February 1990. A deportation order was made on 12 March 1990 and the appellant moved promptly to seek judicial review on 15 March 1990. The circumstances of the appellant's offences were set out in a Home Office statement which was before the Tribunal. It stated that on 5 November 1988, pursuant to section 18 of the Police and Criminal Evidence Act 1984, police officers searched a flat in Kennington Park Road. In the course of doing so they also searched the appellant who was found to be in possession of heroin. His own address in Radnor Place, W2, was also searched. Heroin, cocaine and cannabis were found. The appellant stated these drugs were given to prostitutes in payment for sex. He also admitted to having a heroin and cocaine habit himself. The corruption charge related to an attempt by the appellant to bribe the police officers who arrested him to destroy the evidence they had found. The appellant had no known previous convictions. It is convenient here to set out the powers of the Tribunal on an appeal. Section 19 of the 1971 Immigration Act requires that the Tribunal: ". . . (a) shall allow the appeal if [it] considers -- (i) that the decision . . . against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case; or (ii) where the decision . . . involved the exercise of a discretion by the Secretary of State . . . that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal". Before the learned judge Mr Pannick argued three points. The learned judge rejected them but Mr Pannick renews each of them on this appeal. [1992]Imm AR 223 The paragraph 162 argument First, he submits that the Tribunal erred in failing to find that the Secretary of State had not complied as a matter of law with paragraph 162 of the relevant immigration rules HC 388. The paragraph provides: "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". Mr Pannick relies on the words "consistent and fair as between one person and another". He contrasts the basis upon which the Secretary of State decided to deport the appellant with that which, he says, would justify deporting an EEC national. As to the latter, paragraph 152 of HC 388, which is in section two of the rules concerned with control after entry, provides as follows: "A person who meets the requirements of paragraph 147(a), (b) or (c) 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". Paragraph 147, mentioned there, refers to persons admitted under Part VI of the rules as EEC nationals who are normally permitted to remain in the United Kingdom for six months before applying for a residence permit and states that such a permit will be issued if the person (a) has entered employment or (b) had established himself in business or otherwise in accordance with the provisions of Community law relating, inter alia, to the provision and receipt of services or (c) is a member of a family of a person to whom (a) or (b) applies. Article 3 of Council Directive 64/221 EEC provides: "1 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". In R v Bouchereau [1978] 1 QB 732 the European Court considered the meaning of the phrase "in themselves" in article 3(2) above. They said at page 759: "25 The second question asks --

'whether the wording of article 3(2) of [EEC Council] 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) of Directive No 64/221'.26 According to the terms of the order referring the case to the court that question seeks to discover whether, as the defendant maintained before the

[1992]Imm AR 223 National Court, 'previous criminal convictions are solely relevant in so far as they manifest a present or future intention to act in a manner contrary to public policy or public security' or on the other hand, whether, as counsel for the prosecution sought to argue, although 'the court cannot make a recommendation for deportation on grounds of public policy based on the fact alone of a previous conviction' it 'is entitled to take into account the past conduct of the defendant which resulted in the previous conviction.' 27 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 requirements 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". The next step in Mr Pannick's argument is the judgment of Donaldson LJ (as he then was) in the Divisional Court in R v Secretary of State for the Home Department ex parte Santillo [1981] QB 778. It is important to note that that case concerned an EEC national who had been recommended for deportation by the trial court following criminal convictions. At page 784 Donaldson LJ quoted the above passage from R v Bouchereau except that he did not include paragraph 30 of the judgment in his citation. He went on at page 785C to say: ". . . the fact of previous criminal convictions is irrelevant save in so far as past personal conduct throws light upon the likely pattern of future personal conduct and that likelihood justifies the deportation as a matter of public policy or public security". Later in his judgment Donaldson LJ said at page 785F: "For the reasons which I have given I do not consider that there are any grounds for granting the relief sought. However, it is clear that courts which are minded to make recommendations for deportation should have their attention drawn to two matters. The first is that to which I have already referred, namely, that the existence of previous criminal convictions is not of itself a basis for making a recommendation. This is not only the law in accordance with article 3 of the Council Directive. It is also only common sense and fairness. No one can reasonably recommend deportation of a foreigner solely because he has a [1992]Imm AR 223 criminal record. If he is, or will upon release from prison be, completely rehabilitated, he is a threat to no one. But the position is quite different if the court considers that the previous record of the accused, including the offence with which the court is directly concerned, renders it likely that he will offend again. This possibility of re-offending . . . is a very important factor in deciding whether to recommend deportation and taking account if it is permitted by the Council Directive". Basing himself upon the provisions and citations above, Mr Pannick submits that a convicted EEC national cannot be deported solely on the ground of his convictions, and he contends that that is the sole ground on which the Secretary of State decided to deport this appellant. Therefore, there is a breach of paragraph 162, since the appellant's treatment is not consistent and fair when compared with that required by the law in regard to an EEC national. The respondent's first answer to that argument is that the immigration rules form a code which clearly provides for distinctions to be drawn between EEC nationals and other foreign nationals. Accordingly, the rules do not require consistency of treatment as between an individual who is an EEC national and one who is not. Mr Pleming drew attention to a number of rules in HC 388 which support that proposition. Without setting out all the rules or Council Directive 64/221/EEC in full, their effect can be summarised. Rule 34 requires, in general, that an applicant for entry to seek employment will be refused unless he has a work permit. But this rule is qualified in respect of EEC nationals to give effect to the Community law principle of freedom of movement of workers. Thus, rule 68 provides that section one rules (which include rule 34) apply to EEC nationals only to the extent permitted by Community law, and rule 69 provides: "A national of a Member State of the European Community is entitled to admission to take or seek employment, to set up in business, to become self employed or otherwise to exercise the right of establishment or the rights relating to the provision and receipt of services as provided in Community law". A footnote to that rule refers to a number of Council regulations and directives including 64/221/EEC. Again, rules 78, 81, 84 and 86 do not apply equally to EEC nationals as to others by reason of Community law and in particular Council Directive 64/221/EEC. Moving to section two of the rules, concerned with control after entry, rule 146 is the equivalent of rule 68 in section one. It provides that the rules in section two apply to EEC nationals only to the extent permitted by Community law. Rule 162 upon which Mr Pannick relies and rule 152 are both in section two. Mr Pleming submits the latter makes clear that the rules contemplate different criteria with regard to deportation as between EEC and non-EEC nationals. If that were not so, there would be no need for the words in rule 152 "who meets the requirements of paragraph 147(a), (b) or (c)". All persons would, on Mr Pannick's argument, have the benefit of rule 152. The learned judge said in regard to rule 162, at page 16 of his judgment: ". . . In my judgment one has to read that rule in its context. Its context is a set of rules which sets out very clearly that special considerations [1992]Imm AR 223 relate to nationals of European Community countries. These are underpinned by the principle of freedom of movement within the Community, which is an important feature of the Community, and these special rules do not apply to non-EEC nationals. I would certainly see the force of Mr Pannick's submissions if rule 162 was not to be found in a set of rules which, in themselves, made it clear that there was likely to be inconsistency of treatment". He might have added that rule 162 itself recognises that "one case will rarely be identical with another in all material respects". One of the points of difference will be between the case of an EEC national entitled to the benefits of Community law and the case of any other foreign national who is not. Court of Appeal cases The Immigration Appeal Tribunal, in rejecting the argument for the appellant, considered itself bound by the decision of this court in R v Immigration Appeal Tribunal ex parte Florent [1985] Imm AR 141. There, a citizen of St Lucia with indefinite leave to remain in the United Kingdom had been convicted of wounding his wife with intent. As here, no recommendation for deportation was made by the trial court, but the Secretary of State decided to deport the appellant under section 3(5)(b) of the 1971 Act. Lawton LJ, with whom the other members of the court agreed, gave the leading judgment. After referring to the passage from the judgment of Donaldson LJ, in ex parte Santillo (cited above), he went on at page 147: "Mr Macdonald pointed out that there was nothing in the Secretary of State's statement to the Immigration Appeal Tribunal to show that he took that matter [possibility of re-offending] 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 also had to accept 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. It follows that there was nothing that he did which brings the case within section 19(1)(a) of the 1971 Act". Thus, despite the citation from Santillo and the absence of any indication that the possibility of re-offending had been the test applied, this court upheld the Secretary of State's decision. Mr Pannick submits that his specific argument for consistency, based on paragraph 162 and the EEC Directive, was not developed. But what was specifically considered by the court was the argument that deportation should be ordered only if there is a risk of re-offending. The court made it clear that the seriousness of the offence may be sufficient to merit deportation. In doing so, this court was saying no more than the European Court said in Bouchereau at paragraph 29, cited above. If Donaldson LJ in the passage cited went further, his observations cannot stand with Florent. It should be noted, however, that those observations were obiter and were not repeated or adopted by this court on appeal. The case concerned an EEC national, and paragraph 30 of the judgment in Bouchereau, not cited by Donaldson LJ, emphasised the special position of an EEC national and the principle of [1992]Imm AR 223 freedom of movement of workers. Again, the observations in Santillo were directed to recommendations by the courts, not public policy decisions by the Secretary of State, and the possibility of re-offending was said to be "a very important factor", not a sine qua non. Finally, in addition to Florent, we were referred to two other cases in which deportation following conviction on grounds of the seriousness of the offence was upheld by this court (see Martinez-Tobon v Immigration Appeal Tribunal [1988] Imm AR 319 and Hukam Said v Immigration Appeal Tribunal [1989] Imm AR 372). If there were merit in Mr Pannick's rule 162 argument it would be surprising enough that neither experienced counsel nor this court appreciated it in Florent. All the more surprising that the argument failed to surface in the two further appeals. Mr Pannick accepted that if he is correct all three of those cases were wrongly decided. The criminal cases Mr Pannick relied upon certain decisions of the Criminal Division of this court. In R v Nazari & ors (1980) 2 Cr App R(S) 84 Lawton LJ laid down certain guidelines for Crown Courts to apply before recommending deportation. The first was whether the accused's continued presence in the UK is to its detriment. In Escauriaza (1988) 9 Cr App R(S) 542 the court compared that guideline with the requirements of Community law and concluded that the latter simply mirrors the law and practice of this country. In Spura (1988) 10 Cr App R(S) 376 the court quashed a recommendation for deportation of a German national who had been convicted of indecent assault on a young boy and sentenced to 18 months imprisonment. The Nazari test of potential detriment to this country was applied. Since the necessary material to determine whether there was a danger of the appellant re-offending had not been before the trial court, it was held the recommendation could not stand. Those cases were all concerned with the correct approach by a trial judge to recommending deportation. They did not purport to define or limit the scope of the Secretary of States discretion under section 3(5)(b) of the Act. Moreover, Florent was not cited in either Escauriaza or Spura. In Hukam Said, Stocker LJ said at page 378: ". . . it is to be noted that the case [of Nazari and others] was an appeal to the Criminal Division of this court, and related to guidelines which the court was laying down (so far as it was possible to lay down general guidelines) for the guidance of courts in making recommendations for deportation. It did not, and did not purport to lay down any guidelines for the exercise of his discretion by the Secretary of State". Conclusion on the paragraph 162 argument In my judgment Mr Pannick's argument founded on paragraph 162 fails. The Tribunal and the learned judge correctly held that the paragraph was subject to the distinctions between EEC and non-EEC nationals flowing from Community law with its emphasis on freedom of movement of workers. Accordingly, inconsistency of treatment between individuals one of whom is and one of whom is not an EEC national for Community law reasons does not violate the rules. Secondly, even under Community law, although the mere fact of conviction cannot justify a deportation, the seriousness of an offence can. Whether an offence is so serious as to do so is a matter within the discretion of the Secretary of [1992]Imm AR 223 State. Accordingly, in my judgment, this first submission fails to establish any error of law. The "reasons" argument Mr Pannick's second submission is that the Immigration Appeal Tribunal gave no reasons at all for their decision or, alternatively, their reasons were inadequate. It is common ground that the Tribunal had a legal duty to give reasons pursuant to section 12 of and schedule 1 to the Tribunals and Inquiries Act 1971. Moreover, the reasons must be proper, intelligible, and adequate (per Lord Bridge of Harwich in Save Britain's Heritage v Secretary of State [1991] 1 WLR 153 at pages 166-7). Here, Mr Pannick submits that the Tribunal merely incanted the words of rule 162 when (at page 9 of their determination) they said: "In our judgment, when the public interest is balanced against the compassionate circumstances of the case, deportation is the right course on the merits". Such incantation does not amount to reasons. However, those words were merely the resolution of a balancing exercise clearly discernible from the body of the determination. The Tribunal stated that the appellant had been convicted of serious drug offences and of corruption. The public interest which they balanced in the final paragraph was clearly the desirability of removing the appellant from the United Kingdom having regard not merely to the existence of the conviction but to the seriousness of the particular offences he had committed as described in the Home Office statement. The Tribunal also said (at pages 6-7): "The appellant had a long history of addiction to drugs. The Secretary of State could therefore exercise his discretion on the basis that the appellant had a propensity to commit drug offences. He could also take the view that the appellant's past conduct alone in dealing in drugs allied to corruption constituted a present threat to the requirements of public policy at the time of the decision". Mr Pannick argues that the Secretary of State did not in fact assert that he had relied on either of these reasons. However, pursuant to section 19(1)(a)(ii) the Tribunal is empowered to exercise its own discretion and clearly, despite the claim that the appellant was cured of his drug addiction, the Tribunal considered that the two reasons they set out were valid. They considered seriatim each of the factors required to be taken into consideration by rules 167 and 164 of HC 388 which it is unnecessary to set out. In particular, they weighed the compassionate circumstances which they identified as twofold -- that if the appellant were to be deported, he might have some difficulty in visiting third countries and that his business interests in the United Kingdom might be affected. They further had regard in his favour to three matters; that he had not overstayed in the past, that he was not recommended for deportation by a judge and that he had expressed regret for his crimes. It was only after balancing all those matters that the Tribunal stated their finding in the final paragraph which is attacked by Mr Pannick. In my judgment, taken as a whole, the determination makes clear the reasons for the decision and this ground of appeal fails. [1992]Imm AR 223 Perversity Mr Pannick's final argument is that the conclusion reached by the Secretary of State and affirmed both by the Tribunal and the learned judge was Wednesbury unreasonable. I have already described the appellant's history and the circumstances of his offences. Supplying a class A drug is itself a serious offence. To compound it by seeking to bribe the arresting officers is even more serious. It is true that the sentence imposed on the appellant was at the lower end of the scale. However, I find it impossible to say that on the facts of this case the conclusions reached by the Secretary of State and the Tribunal were perverse. Accordingly, in my judgment this appeal should be dismissed.

Judgment Two:

RALPH GIBSON LJ: I agree.

Judgment Three:

PURCHASE LJ: I also agree.

DISPOSITION:

Appeal dismissed. Leave to appeal to the House of Lords refused

SOLICITORS:

Stephenson Harwood, London EC4; Treasury Solicitor