Marchon v. Immigration Appeal Tribunal

MARCHON v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1993] Imm AR 384

Hearing Date: 17 February 1993

17 February 1993

Index Terms:

Deportation -- conducive to the public good -- EC national -- convicted of importing heroin -- given long custodial sentence -- no recommendation by court he be deported -- Secretary of State accepted appellant had no propensity to re-offend -- nevertheless decided to deport appellant -- appeal dismissed by Tribunal -- whether Secretary of State and Tribunal adopted proper approach -- whether the continued presence in the United Kingdom of the appellant after serving his sentence could be held to present any threat to public policy -- whether the circumstances put the case in that group of exceptional cases where past conduct alone might constitute such a threat to the requirements of public policy as to justify deportation -- whether in the case of an EC citizen the Tribunal was obliged to carry out two balancing exercises -- whether it would be proper for the Tribunal to consider the adequacy of a criminal court's sentence to expurgate an offender's crime against society. Immigration Act 1971 s 3(5)(b); HC 388 paras 147, 152, 164, 167; EC Directive 64/22 1 arts 2(1), 3(2); EC Directive 73/148 art 4.1.

Held:

Appeal from Henry J who had dismissed an application for judicial review of a determination of the Tribunal dismissing an appeal against the decision of the Secretary of State to deport the appellant as conducive to the public good. The appellant held dual Indian and Portuguese nationality and was thus accorded the protection of EC law. While a consultant psychiatrist in a national health hospital, he was arrested for smuggling heroin. He received a long custodial sentence and the Secretary of State decided to deport him, he concluding that the deportation would be conducive to the public good. An appeal was dismissed by the Tribunal. Judicial review of that decision was sought. The sentencing court had made no recommendation that the appellant be deported. The Secretary of State accepted that the appellant had no propensity to re-offend. Before the court it was argued that it could not be reasonably concluded that the appellant's presence in the United Kingdom, after he had served his sentence, would present any threat to public policy. It was further argued that the Tribunal had erred in law in failing demonstrably to have carried out two balancing acts -- first that required in all deportation cases where the merits were before the appellate authorities, and second an assessment of the circumstances in accordance with the provisions of EC law. In that regard it was argued that the appellant after serving his sentence and with no propensity to re-offend would only constitute a threat to public policy if the public did not consider that the sentence expurgated his crime against society. Held 1. Following Bouchereau there were some exceptional cases in which past criminal conduct itself justified deportation of an EC citizen. The present case fell into that category. 2. There was no need for the Tribunal to carry out two separate balancing acts when dealing with the deportation of an EC national: they could be subsumed into one. 3. The Secretary of State was entitled to regard the conduct of the appellant as a flagrant abuse of the right of permanent residence in the United Kingdom. 4. It would be most undesirable that the Secretary of State or the Tribunal should have to consider the adequacy of the sentence passed on a national of an EC state, to determine whether that alone would assuage the outrage felt by society in respect of the offence. Likewise it would be inappropriate for either to speculate on why a court had not recommended deportation.

Cases referred to in the Judgment:

R v Bouchereau [1978] QB 732: [1981] 2 All ER 924. R v Secretary of State for the Home Department ex parte Santillo [1981] QB 778: [1981] 2 All ER 897. R v Immigration Appeal Tribunal ex parte Tamjid-Nezhad [1986] Imm AR 396. Sheikh Mohammad Al-Sabah v Immigration Appeal Tribunal [1992] Imm AR 223. R v Immigration Appeal Tribunal ex parte Olavo Marchon [1993] Imm AR 98.

Counsel:

A Nicol for the appellant; Miss A Foster for the respondent PANEL: Dillon, Beldam, Rock LJJ

Judgment One:

DILLON LJ: The court has before it an appeal by Mr Olavo Marchon against an order made by Henry J on 14 October 1992 whereby, taking the Crown Office List in the Queen's Bench Divisional Court, he dismissed an application by Mr Marchon for judicial review by way of certiorari. What Mr Marchon sought to quash by certiorari was a decision of the Immigration Appeal Tribunal which had dismissed an appeal of Mr Marchon against a deportation order made against him by the Secretary of State for the Home Department in 1990, under section 3(5)(b) of the Immigration Act 1971, that is to say on the ground that the Secretary of State deemed his deportation to be conducive to the public good. The appeal raises an issue as to the application of a decision of the European Court by the national court. The appellant, Mr Marchon, is a national of India but also a national of Portugal and thus a national of an EC Member State. At the time he came to England in January 1975 he was qualified as a doctor and he was exercising his rights as a national of a member state to seek work as a self-employed person here. He was duly granted leave to remain. From 1975 he occupied various medical posts at hospitals in this country, and from 1981 he was a consultant psychiatrist at a national health service hospital. He had, however, extracurricular activities, and on 29 April 1986 he was convicted at Reading Crown Court of conspiracy fraudulently to evade the prohibition of the importation of Class A controlled drugs, heroin. He was sentenced to 14 years imprisonment which, on appeal, was reduced to 11 years. It seems that the conspiracy alleged and proved to the satisfaction of the jury (and I take this from the judgment of Henry J) 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 when, as I have already mentioned, he was a consultant psychiatrist at a national health service hospital. That is a very grave offence. The trial judge made no recommendation for deportation at his trial, but that is irrelevant to the factors which we have to consider in the present case. Given the length of his sentence, it would seem from the case to which we were referred of R Secretary of State for the Home Department ex parte Santillo [1981] All ER 897, that had the trial judge made a recommendation for deportation it would have been arguable that it was not relevant for consideration in an EC context, because it was made too long before the completion of his sentence. So I pass by that point. The law on deportation in respect of the nationals of EC states is admirably set out by Henry J in his judgment. Paragraph 152 of the immigration rules which are relevant to this case, HC 388/1989, provides that: "A person who meets the requirements of paragraph 147 . . ." -- and that includes this appellant -- "(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". That provision reflects what is to be found in various EC directives, in particular EC Directive 73/148 and EC Directive 64/221. Article 4.1 of Directive 73/148 gives the right of permanent residence to nationals of other member states to establish themselves within the territory of a member state in order to pursue activities as self-employed persons. Article 8 then provides that: "Member States shall not derogate from the provisions of this Directive save on the grounds of public policy, public security or public health". Similarly Directive 64/221 provides by article 2.1: "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". Article 3 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". The European Court had occasion, in the case of R v Bouchereau [1978] QB 732 to consider questions remitted by a magistrates' court as to the meaning of the words "in themselves" in article 3(2) which I have just read and as to the meaning in this particular context of the words "public policy". The second question in Bouchereau, which was concerned with the meaning of the words "in themselves", laid the law down as follows and I can read from paragraph 27 to 29 of the decision of the court: "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". I stress the second limb of paragraph 29. Paragraph 30 then left the application of those principles to the national court. The third question in Bouchereau was as to the meaning of the words "public policy". The conclusion of the European Court is given in paragraph 35: "In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society". That seems to pick up a suggestion of Mr Advocate-General Warner in his opinion which is to be found at page 743B-C in the law report. It is plain that the test to be satisfied before a deportation order can be made is higher where the deportation of a national of an EC member state is in question than in the case of the deportation of a national of a state outside the EC who is not also a national of a member state. That is accepted by the Home Office in argument in the present case. It is thus irrelevant that if the appellant in the present case was merely a citizen of India or of some other non-EC state there could be no conceivable objection to the decision of the Immigration Appeal Tribunal which refused to quash the deportation order. Any deportation order, of course, involves, in addition to other requirements, a balancing of domestic and compassionate circumstances against the factors which point in favour of deportation. This however was duly done by the Immigration Appeal Tribunal in the present case and the conclusion on that point of the Immigration Appeal Tribunal is not challenged. It is accepted in this case by the Crown that the appellant has no propensity to commit further offences similar to that of which he was convicted. It is said, therefore, by Mr Nicol for the appellant that the continued presence of the appellant in this country after serving his sentence cannot present any threat to public policy or public security, let alone a genuine and sufficiently serious threat to the requirements of public policy to satisfy paragraph 35 in the Bouchereau case. He submits that the fact of a past conviction where there is no propensity in the offender to commit further offences will only satisfy the second limb of paragraph 29 if the offender had become so notorious by his offence that his mere presence presented a risk of others doing acts contrary to the requirements of public policy or public security -- for instance, if the offender had been convicted of an offence involving the inflammatory expression of racialist opinions, his mere presence might provoke trouble even if he himself had learned his lesson, sinned no more and behaved impeccably. I take the view that the second limb of paragraph 29, though not to be construed unduly widely is not so narrowly restricted as Mr Nicol has submitted. Indeed, it might be said that, in the case he posits, the measures would be taken not exclusively on the personal conduct of the individual concerned but almost exclusively on the anticipated conduct of other individuals so as to be in breach of article 3, sub-article 1. In the Bouchereau case Mr Advocate-General Warner said, at page 742B-C, in his opinion: ". . . The United Kingdom Government in particular points out that cases do arise, exceptionally, [my emphasis] where the personal conduct of an alien has been such that, whilst not necessarily evincing any clear propensity on his part, it has caused such deep public revulsion that public policy requires his departure. I agree. I think that in such a case a member state may exclude a national of another member state from its territory, . . .". I regard that view of Mr Advocate-General Warner as within the second limb of paragraph 29. A similar view was expressed by Taylor J (as he then was) in the case of R v Immigration Appeal Tribunal ex parte Darioush Tamdjid-Nezhad [1986] Imm AR 396 at page 402 where he approved a submission of counsel that there can be situations where past conduct giving rise to a previous criminal offence can of itself pose a threat if it is sufficiently grave conduct and it can therefore be said by its gravity in itself to pose a threat to public policy. That was obiter as, in the particular case, the individual in question was shown to have a propensity to commit further offences. Taylor J, again obiter, expressed the same view in giving the leading judgment of this court with which Purchas LJ and Ralph Gibson LJ concurred in Sheikh Mohammad Nasser Al-Sabah v Immigration Appeal Tribunal [1992] Imm AR 223. That was also obiter because the individual in that case was not a national of an EC state but a national of Kuwait. Applying that principle, the offence which this present appellant committed was a very serious and horrifying offence in a field where there is grave danger from the use of heroin and the supply of heroin in this country. It is an especially horrifying offence, repugnant to the public, where committed by a doctor. That was pointed out by the Immigration Appeal Tribunal in their decision, and it is conceded by Mr Nicol for the appellant that that was a legitimate factor to take into account, if the general approach of taking account of the gravity of the offence was sufficient to satisfy the requirements of EC law. In her submissions to us Miss Foster suggested as a formula that the conduct of this appellant "indicated a disregard of the basic or fundamental moral tenets of society". I find that a helpful guideline though I would not wish to rule on it as a necessarily binding principle of law. It was put forward by Miss Foster from her own consideration of the standard in paragraph 35 of the Bouchereau test, and not on instructions as the policy rule on which the Home Secretary acts. On that basis, and subject to the second point to which I shall come, deportation is, consistently with the Bouchereau decision, amply justified in the present case. However Mr Nicol puts forward an alternative submission which is to the effect that the Immigration Appeal Tribunal was required by EC law to consider whether the deportation of the applicant was necessary to protect public policy, and to consider whether deportation was disproportionate to the threat which he allegedly posed to public policy, and 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. By "his fundamental right of movement", I think Mr Nicol means his fundamental right not to move from the member state where he would prefer to be. He says thereafter that there are two balancing exercises to be carried out. In my judgment, however, they are effectively subsumed into one. The court has to consider the seriousness of the offence and whether that itself merits deportation. But the Immigration Appeal Tribunal has considered the seriousness of the offence. That seriousness is not in my judgment mitigated by the fact that the offender was given, and will have served, an appropriately long sentence for such a grave offence. The offence itself committed by him is an affront to the requirements of public policy in the present case and it involved a disregard of the basic or fundamental or moral tenets of society. One would expect that such an offence would receive an appropriately heavy sentence, as this one did. But I do not see that that has any bearing upon the quite different question whether the committing of such an offence in its circumstances itself involves a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society and so sufficient to warrant deportation. For these reasons, I would dismiss this appeal.

Judgment Two:

BELDAM LJ: I agree. The principal question argued in this appeal is whether the Secretary of State has power under European law to order the applicant's deportation. The order made by the Secretary of State and upheld by the Immigration Appeal Tribunal clearly derogated from the applicant's right to permanent residence here. In justification for his order the Secretary of State relied upon the ground that the previous conduct of the applicant was, or amounted to, a genuine and sufficiently serious present threat to public policy affecting a fundamental interest of society. In relying on that ground the Secretary of State clearly had in mind the judgment, to which my Lord has referred, in the case of R v Bouchereau. In that case the European court, having been asked to rule on two questions of relevance in this case ruled on the meaning of article 3(2), on the significance of a previous conviction, and on the meaning of public policy in article 48(3) of the Treaty. The relevant passages in the judgment of the court are those contained in paragraphs 28 and 35 and they may be considered together to amount to a question whether the circumstances which gave rise to the applicant's conviction are evidence of personal conduct constituting a present and serious threat to the requirements of public policy affecting one of the fundamental interests of society. I would begin therefore by considering what the fundamental interest of society in public policy was that the Secretary of State considered. It would in my judgment be difficult to imagine a more fundamental interest than the unrelenting pursuit of the fight against the deliberate debilitating and destructive influence of dealing in, and importing into society, addictive and lethal drugs such as heroin and cocaine. It seems to me that even the hint that society was prepared to tolerate such conduct, by accepting the presence of persons who have been prepared to import large quantities of such drugs under the cloak of legitimate business, would undermine the overwhelming public interest in defeating this subversive trade. I say this not simply because refusal to do so would act as a deterrent to others but rather that it serves to emphasise the grave and present danger which society faces from this threat. At the least, it seems to me that the Secretary of State is entitled to regard conduct of that kind as a flagrant abuse of the right of permanent residence in this country. How then does the applicant's conduct measure up? He was a consultant medical practitioner. Of the dreadful consequences of the misery and suffering that such drugs are capable of causing to members of society less fortunate than he, he must have been well aware. Yet, unmindful of his calling and of his duty under the law, he was prepared, for personal financial gain, to countenance the havoc which such conduct could wreak. In my view, there was evidence of a sufficiently serious threat to public policy for the Secretary of State to reach the conclusion that he had the power, and I would go so far as to say the duty, in a case such as this, to reach the decision that he did. It was urged that the Secretary of State's response was not proportionate to the threat to public policy as it affected one of the fundamental interests of society. I do not agree. It seems to me that this interest of society is one which today must be taken to transcend the personal rights of residence if those rights are abused in the way that this applicant abused his right of residence. In simpler terms the principle was stated by Cicero in the phrase, salus populi suprema est lex, which would in those circumstances have been approved even by John Selden. (For John Selden's comments on this maxim from de legibus, see Table Talk, sub "People").

Judgment Three:

ROCH LJ: I agree that this appeal should be dismissed. I would make some observations on one argument advanced on behalf of the appellant. That submission is that past conduct can only constitute a present threat to the requirements of public policy if the conduct is such that, despite a prison sentence served by the offender between his arrest for the past conduct and the decision to order his deportation (which must necessarily come at or towards the end of his sentence), the public would not treat the offender as having paid his debt to society, and would require in addition that the offender be deported. It is submitted that there is no indication that either the Secretary of State or the Immigration Appeal Tribunal took this factor into account and, therefore, their decisions are flawed because a relevant and material consideration has been ignored. That submission, if correct, would require the Secretary of State, and on appeal the Immigration Appeal Tribunal, to consider the adequacy of the criminal court's sentence to expurgate the offender's crime against society and probably to inquire into the reasons why no recommendation for deportation had been made, if indeed that was the position. If this were not so, and were it to be accepted that in each case the sentence was sufficient (to use a colloquialism) to "wipe the slate clean", then the second possible route by which the conclusion that a present threat existed to the requirements of public policy would be closed. I would merely observe that it would, in my view, be most undesirable that the Secretary of State or the Immigration Appeal Tribunal should have to consider the adequacy of the sentence passed by the criminal court on a national of an EC country or whether the sentence passed would assuage the feelings of outrage and revulsion held, or likely to be held, by members of society in this country. Nor would it be right for the Secretary of State or the Immigration Appeal Tribunal, in my opinion, to have to speculate on the reasons why the sentencing court itself made no recommendation for deportation. The absence of a recommendation for deportation by the sentencing court may be due to many factors -- for example, it may simply have been overlooked, or the requisite seven days' notice may not have been given to the defendant, or there may be issues of fact on which the power to make such a recommendation rests which the criminal court may not have wished to try. Further, I would accept the submission of the respondent's counsel that society's present abhorrence and revulsion at the past conduct of the offender are not the only factors to be taken into account. The Secretary of State is entitled, in the appropriate case, in my view, to decide that, by virtue of his past conduct, a foreign EC national has forfeited his right to travel to and remain in the United Kingdom because public policy or public security or public health or a combination of these things require him to leave once his sentence is completed. Finally, I doubt that the submission is sound in the light of the terms of the EC Directive 73/148 and the judgment of the European Court in R v Bouchereau [1978] 1 QB 732, both of which emphasise that the decision maker should concentrate on the past conduct rather than the conviction and, I would add, sentence of the offender. I too would dismiss this appeal.

DISPOSITION:

Appeal dismissed: leave to appeal to the House of Lords refused

SOLICITORS:

Jane Coker & Co, London N17; Treasury Solicitor