Bashir Alias Ayoub v. Secretary of State for the Home Department

BASHIR alias AYOUB v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/27119/78(1295)

Immigration Appeal Tribunal

[1978] Imm AR 150

Hearing Date: 9 August 1978

9 August 1978

Index Terms:

Deportation -- Deportation 'conducive to the public good' -- Criminal conduct -- Whether such conduct should be disregarded in light of evidence of rehabilitation after discharge from prison -- Whether alien's immigration status (entry obtained by deception in 1970) relevant to question whether deportation 'conducive to the public good' in 1977 -- Public interest balanced against compassionate circumstances -- Immigration Act 1971, s 3(5)(b) -- HC 82, para 45.

Held:

In considering whether a person's deportation would be "conducive to the public good" under s 3(5)(b) of the Immigration Act 1971 n1 it would be incorrect to say that an aliens's immigration status was not a relevant circumstance to be taken into account; it would also be incorrect to say that the Secretary of State when considering deportation under sub-para (b) of s 3(5) had to direct his mind to the future and not to the alien's past conduct (convictions of crime), on the basis that if the alien's conduct showed promise of improvement and he had obtained good employment his continued presence in this country could not be regarded as not being "conducive to the public good". n1 Under s 3(5)(b) of the Immigration Act 1971 "A person who is not patrial 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." These propositions were put to the Tribunal in the appeal reported below which arose from the Secretary of State's decision to deport a citizen of Pakistan (believed to be in his early twenties) who had been convicted of offences of burglary and aggravated burglary and sentenced concurrently to 2 years' and 18 months' imprisonment. The appellant had not been recommended for deportation by the Court but the Court had directed that the circumstances of his arrival in this country be investigated. The investigation revealed that the appellant had entered the United Kingdom in 1970 by means of a deception which put him in the category of an illegal immigrant; the proposed deportation order was, however, grounded by the Secretary of State on the appellant's behaviour since his arrival. The Tribunal, acting in accordance with para 45 of HC 82, dismissed the appeal after considering whether deportation under s 3(5)(b) was "the right course on the merits", balancing "the public interest" against such "compassionate circumstances of the case" as were disclosed in the evidence and dealt with in counsel's representations. Per curiam: The effect of prison life and an assessment of the appellant's likely future behaviour were material circumstances to take into account, but the Tribunal could not accept that in deciding whether to make a deportation order under s (5)(b) of the Immigration Act 1971 the Secretary of State should, or must, close his eyes to the past behaviour of the appellant, for indeed it was the appellant's past conduct which had made him a candidate for deportation.

Introduction:

The facts are set out in the determination.

Counsel:

S. Kadri, counsel for the appellant. W. G. Chalmers for the respondent. PANEL: A. Hooton Esq (Vice-President), J. H. Bowman Esq, A. J. Coles Esq

Judgment One:

THE TRIBUNAL: This is an appeal by Mohammed Bashir, alias Ayoub, against the decision of the Secretary of State to make a deportation order against him under s 3(5)(b) of the Immigration Act 1971. The Secretary of State deemed his deportation to be "conducive to the public good" in view of his conduct in this country. The appellant is a citizen of Pakistan. He was convicted at the Crown Court, Stoke-on-Trent, on 4 March 1977 of offences of aggravated burglary and burglary and received concurrent sentences of two years' and eighteen months' imprisonment. The offences are described in the Home Office statement as follows:

"The nature of the offence was that the appellant and another man broke into a house and stole money and property valued at @ 9.50. The 58-year old occupant of the house was disturbed when they entered his bedroom. While his accomplice searched the room, the appellant stood over the bed holding a kitchen knife. The occupant grappled with the appellant and shouted for help and the two intruders fled."

In paragraph 7 of the Home Office explanatory statement is set out the appellant's version of the offences, as follows --

"7. With regard to his arrest for burglary, the appellant said that one evening, after a row with his girl-friend, he had left the house and visited several public houses, in one of which he met a man who invited him back to his house for more drink. In the early hours of the morning he left the house, very much the worse for wear after drinking for several hours, accompanied by the man who had invited him to his house, who wished to escort him part of the way home. The man stopped and took the appellant into the back yard of a house, and proceeded to enter the house through a window he had broken. The man soon came out of the house, explaining to the appellant that he had come to the house specifically to burgle it. A few days later the appellant was arrested by police at his home."

He was unemployed at the time. These were not the first crimes the appellant had committed. In April 1975 he was fined for criminal damage and in December 1975 he was further fined for loitering with intent and unlawful possession of car keys. The appellant has served the sentences of imprisonment imposed by the Crown Court and is now living with his sister and brother-in-law at 6 Ashwood Terrace in Stoke-on-Trent. Part of his sentences were served at an open prison but after a period there he was transferred to the tighter security of Durham prison. The trial judge did not make a recommendation for deportation n3 and so the question of deportation was left to the Secretary of State and the Tribunal. The trial judge did, however, give directions that the circumstances of the appellant's arrival in this country be investigated. This has been done, and after some initial lying on the part of the appellant, the position now appears to be established. He arrived in this country in 1970 in the company of his sister and two of her children posing as her son and travelling on a passport which gave his name as Mohammed Ayoub and his date of birth as 13 February 1956. On 14 September 1971 he registered a change of name by deed poll with the office of the Pakistan Government Representative at Bradford and he obtained a new passport under the name of Mohammed Bashir with a different date of birth, namely 12 April 1953. The truth of the appellant's arrival has been revealed to the authorities on the very proper advice of the solicitors representing the appellant and they have applied for an amnesty for the appellant and his sister. n3 i.e. under s 3(6) and s 6(1) of the Immigration Act 1971. At the hearing of the appeal we heard the evidence of the appellant and his sister's husband, Lal Din, of 6 Ashwood Terrace, Stoke-on-Trent. There was also produced to us some documentary evidence in the form of the translation of a statement made by Lal Din to the police on 16 May 1978, a statement made by Detective Constable Mellenchip on 7 August 1978 pertaining to his enquiries as to the appellant's origins, relatives and entry into the United Kingdom, and a testimonial dated 4 August 1978 from the dipping house manager of the appellant's current employers, Portmeirion Potteries Ltd, which reads as follows:

"This is to confirm that Bashir, clock no.168, is permanently employed by this company and is found to be a very reliable and conscientious person."

From Lal Din's evidence and his written statements it emerges that the appellant's father died when the appellant was very young and that Lal Din and his wife took him into their home and brought him up as their child. In this country it appears that the appellant lived with them at their home. He was at first well-behaved and he was employed by Barker Bros. Ltd of Stoke-on-Trent from 16 September 1970 to 15 October 1976. After Lal Din returned from a visit to Pakistan, however, he found the appellant to be out of control -- he was drinking and going out with a girl-friend. Since coming out of prison his behaviour has been good. From Lal Din it has been learned that the appellant's mother is still alive in Pakistan and that he has there three brothers and three married sisters. All these members of his family live in Choki Sahiban. The appellant did not impress us as a witness. He appeared to be less than fully frank and to prevaricate when answering some questions put to him in cross-examination -- for example, he at first claimed that he did not know where his mother was now living, he professed ignorance of any reason for his removal from an open to a security prison, he claimed that he did not know of any place to which to go if he were deported to Pakistan. He asserted that his correct date of birth was that shown on the passport on which he arrived, namely 13 February 1956, and not that shown on his current passport, 12 April 1953. The reason he gave us for the change of declared age was that he did not want to be sent to school, but in fact he did not obtain his new passport until a year after he had gone to work. He attributed his lies to the police during their enquiries about his background to a wish to protect his sister, but it is evident that telling the whole truth does not have a high priority in his outlook. He attributed the offences he had committed to drink. He said he no longer drank and had not entered a public house since his release from prison. Mr Kadri submitted that the circumstances of the appellant's immigration status were not relevant to the question whether his deportation was "conducive to the public good". We think that a general proposition that an alien's immigration status is not a relevant circumstance to be considered is incorrect, but in the present case the reason prompting the Secretary of State's decision was not the manner in which he arrived in his country, but his behaviour since he arrived, and it is on the basis of the appellant's behaviour and not on that of his immigration status that we judge his appeal. Mr Kadri further submitted that the continued presence of the appellant in the country could not be considered as not being conducive to the public good; he had renounced his drinking habits and would not in the future offend against the laws of the country; further, in deciding whether it was "conducive to the public good" the Secretary of State had to direct his mind to the future and not to the past. Whilst we accept that the effect of prison life and an assessment of the appellant's likely future behaviour are material circumstances to take into account, we cannot accept that in deciding whether to make a deportation order under s 3(5)(b) of the Immigration Act 1971 the Secretary of State should, or must, close his eyes to the past behaviour of the appellant. Indeed it is the appellant's past conduct which has made him a candidate for deportation. In the case of Suen Kam Shing n4 the Tribunal said: n4 Shing v Secretary of State for the Home Department, TH/2293/73(169) (unreported).

"It seems to us a reasonable and proper view that it is in the public interest that when an alien who has been given leave to enter this country seriously misconducts himself, as in this case by committing a grave crime, he should be sent out of the country."

The appellant is not a patrial, he has committed grave crimes and cannot be in any better position than one who (like the appellant Suen Kam Shing) entered without fraud. We trust that the appellant has indeed reformed, but we cannot but note that the offences for which he was imprisoned were not the first crimes he committed and that he was not deterred from crime by previous more lenient treatment. Mr Kadri has submitted that it would be a great hardship for the appellant to be sent out of this country. He has a steady job and is living with his brother-in-law and sister whom he looks upon as his parents. He has now been in the United Kingdom for about eight years. But in Pakistan living in Choki Sahiban he has his mother, three brothers and three sisters. It can be no hardship for him to be reunited with them, nor has he been here so long that he cannot re-accustom himself to life in Pakistan. n5 n5 The appellant as a citizen of Pakistan (and disregarding his illegal entry) was not entitled to exemption from deportation under the 'five-year rule' in s 7(1) of the Immigration Act 1971. See Rehman's Case [1978] Imm A R 80. In coming to a decision whether to make a deportation order, all the relevant and particular circumstances have to be taken into account and the public interest balanced against any compassionate circumstances. n6 In the particular circumstances of this case, balancing the public interest against such compassionate circumstances as can be found and taking into account Mr Kadri's representations on behalf of the appellant, we are satisfied that deportation is the right course on the merits. The Secretary of State's decision was in accordance with the law and relevant immigration rules and we are satisfied that his discretion should not have been exercised differently. n6 This requirement is set out in para 45 of HC 82 as follows: "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."

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Ress Jones, Huntbach & Phoenix, Stoke-on-Trent.