R v. Immigration Appeal Tribunal, Ex parte Florent

R v IMMIGRATION APPEAL TRIBUNAL ex parte FLORENT

Court of Appeal (Civil Division)

[1985] Imm AR 141

Hearing Date: 17 July 1985

17 July 1985

Index Terms:

Deportation -- Immigration Act 1971 s 3(5)(b) -- conviction for wounding with intent -- no order by court -- Secretary of State initiates deportation proceedings -- public good -- factors to be taken into account -- nature of offence -- some offences so serious as to justify deportation without any previous criminal history or propensity to commit further crimes -- Immigration Appeal Tribunal reviewed Secretary of State's exercise of discretion -- to succeed an application for judicial review of that review, necessary to show Tribunal's considered views were so demonstrably wrong as to be assailable on ordinary Wednesbury grounds. Immigration Act 1971, s 3(5)(b), 15(7). 19: HC 66 paras 148, 151, 156, 157, 159, 169.

Held:

Appeal from judgment of McNeill J dismissing application for judicial review (Reported [1984] Imm AR 109). 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 s 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 s 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.

Cases referred to in the Judgment:

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 R v Secretary of State for the Home Department ex parte Santillo [1981] 2 All ER 897 R v Immigration Appeal Tribunal ex parte Khan [1982] Imm AR 134: [1983] 2 All ER 420.

Counsel:

IA Macdonald for the appellant applicant; REL Ter Haar for the respondents. PANEL: Lawton, Slade and Dillon LJJ

Judgment One:

LAWTON LJ: This is an appeal by Mr Wellington Joseph Florent against a refusal by McNeill J on 13 July 1984 of the judicial review of a determination of the Immigration Appeal Tribunal made on 9 August 1983 whereby they refused to allow an appeal against an order of the Secretary of State for the deportation of the appellant. The appellant was born in St Lucia in 1954 and was a citizen of the United Kingdom and Colonies until St Lucia became independent about 1979, when he became a citizen of St Lucia by statute. It follows that he is not and was not at any material time a British citizen. He came to this country in 1975 and was given permission to stay for a short time. He left as a member of the crew of a ship, returned to this country after a voyage and was again given permission to stay for a short time on condition that he did not obtain employment. He overstayed his leave and, as a consequence, he was arrested and charged before the Bromley Magistrates with being here illegally. He was fined @10 and recommended for deportation. The recommendation was not implemented by the Secretary of State because, on investigation, it was found that he was contemplating marriage with a young woman and, because of the prospect of marriage, he was allowed to stay and, in due course, was given permission to stay indefinitely. He married the woman and, since the marriage, she has borne him two children. She had a child by another man so the family unit was the appellant, his wife and three children. The two children of whom he was the father in 1982 were aged four and a half years and one and a half years. Unfortunately, the marriage was not a success and in due course in 1982 they separated. There was no order of any court relating to the separation. During the period of separation the appellant from time to time saw his children, collected them from school and the like. It is now pertinent for me to read out the findings of the Immigration Appeal Tribunal. The Chairman in his written determination said this: "The Home Office explanatory statement records that three weeks prior to 17th April 1982 -- the day of the attack -- the appellant had hit his wife with his fist and a chair. The appellant denies this allegation. The appellant told us that, although he is now divorced, he is still close to the children, the oldest of whom (who is not his) is 7, and his two children who are 5 and 2 1/2. He is unable to remember what happened on the day of his attack upon his wife, although he does remember (e) that on that day he was 'feeling very sick'. The doctors' reports which have been produced do indicate that he has suffered from psychiatric trouble and depression in the past." The details of the attack are set out in the statement which the Secretary of State put before the Immigration Appeal Tribunal. It is pertinent that I should read it.

"The appellant's wife again began to struggle and the appellant leant up to the knife rack and took a kitchen knife. His wife said she cannot remember anything at that point other than feeling a pain in her stomach and seeing blood. She then crawled under the table and when the appellant lunged at her again she took hold of the knife and broke the blade. The struggle continued and she got to the hallway where the appellant again pinned her down; he went to get another knife and his wife struggled free. She went towards the front door, opened the door and ran past her neighbour down the stairs of the flats and into a nearby Public House where she collapsed. The police later attended the flat and the appellant was subsequently apprehended."

The Secretary of State through his representative came to this conclusion in paragraph 8:

"The Secretary of State therefore, bearing in mind all the relevant facts including the particularly vicious nature of the offence for which the appellant had been convicted, his length of stay in the United Kingdom, his immigration history and domestic circumstances and not being satisfied that there existed in the appellant's situation sufficient compelling compassionate circumstances which would justify allowing him to remain in the United Kingdom, decided that it would be conducive to the public good to deport the appellant by virtue of section 3(5)(b) of the Appeal Act 1971 and to give directions for his removal to St Lucia . . ."

Then there was a reference to the relevant regulation HC 66 paragraph 148, 151, 157, 159, and 169.

"Notice of the decision was served on the appellant by a prison officer at HM Prison, Camp Hill, where the appellant was serving his sentence, on 25 January 1983."

It is necessary now to refer to the terms of the notice, which were as follows:

"On 30 July 1982 at Croydon Crown Court you were convicted of wounding. In view of this conviction the Secretary of State deems it to be conducive to the public good to deport you. The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave the United Kingdom and prohibiting you from entering while the order is in force. He proposes to give directions for your removal to St Lucia."

It is from that order that the appeal was made to the Immigration Appeal Tribunal. It is now necessary for the court to consider the jurisdiction of the Immigration Appeal Tribunal. Its jurisdiction is set out in section 19. The part of that section which I shall read refers to an "adjudicator" but by subsection (4) of section 19 in the circumstances of this case it is clear that "Immigration Tribunal" shall be substituted for "adjudicator". Section 19(1) reads as follows:

"Subject to sections 13(4) and 16(4) above" -- both of which are irrelevant -- "and to any restriction on the grounds of appeal, an adjudicator on an appeal to him under this Part of this Act -- (a) shall allow the appeal if he considers -- (i) that the decision or action 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 or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently; and (b) in any other case, shall dismiss the appeal."

The appellant's case before the Immigration Appeal Tribunal was presented by Mrs Roberts of counsel. She seems, as far as we can follow from the written determination, to have put the appellant's case in this way. I quote from the determination:

"On the appellant's behalf Mrs Roberts submitted that the documentary evidence indicated that the appellant has suffered from depression, that he has a continuing relationship with his children, and that the injuries which his wife sustained, as a result of his attack upon her, were not of a very serious nature. Mrs Roberts submitted that the offence was really no more than a serious domestic dispute and was considerably less serious than offences committed by other appellants who had successfully appealed against similar decisions."

Mrs Roberts' view as to the nature of the offence seems to have been very different indeed from that of the Secretary of State, who described the offence as consisting of a particularly vicious attack. For my part, I am surprised that Mrs Roberts should have made a submission to the court on the basis that this attack was no more than a serious domestic dispute. She was probably entitled to refer to other cases because of the provisions of regulation 154 of the appropriate regulations which is in these terms:

"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."

Those last words are particularly relevant because, as those of us who have had experience of criminal jurisdiction know, the label that is attached to an offence seldom reflects both the nature of the offence and the degree of viciousness which went with it. As was pointed out to counsel in the course of his submissions, cases have occurred where a knife has been used causing death, with the result that the prson using the knife has been convicted of manslaughter, but the circumstances in which the offence was committed were such that a very lenient sentence was passed. Circumstances are usually more important than the label on the offence. Mr Macdonald has submitted that the Secretary of State misdirected himself when considering that this was a case to which section 3(5)(b) of the 1971 Act should apply. He also submitted that the Immigration Appeal Tribunal did not give adequate consideration to the offence which was before them; that on the evidence they ought to have come to a different conclusion to that of the Secretary of State; that they failed to take into account matters which they ought to have taken into account and, finally, that the reasons which they gave for their determination were inadequate in that they were not addressed to the relevant issue. It is necessary to see exactly what it is that the Secretary of State should take into account. I have already referred to Regulation 154 of the regulations which were in effect at the material time. Substantially the same regulations are in effect today. Regulation 156 was in these terms: "In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; the nature of the offence of which the person was convicted; previous criminal record; compassionate circumstances; any representations received on the persons's behalf". Those factors to be taken into account apply equally to a case where there is a deportation order under section 3(5) of the 1971 Act. I invite attention to the factors which are relevant in this case. First, age: the appellant is in his early middle age -- he is not an old man, he is not a particularly young man. He has resided in this country partly illegally since about 1975, not a particularly long period. His personal history, including character, conduct and employment, with one exception, have not given rise to any complaint at all. The one exception, however, is relevant to this case. He has shown by his behaviour that in the past he has not intended to comply with the law relating to visitors to this country. He was given, in the clearest terms, only limited time to be here and told he was not to take employment. He did not comply with those terms and as a result he found himself convicted and recommended for deportation. In the course of his submissions, Mr Macdonald accepted that that was a factor which the Immigration Appeal Tribunal was entitled to take into acount, and clearly they did. They took into account his domestic circumstances: he is no longer living with the lady he married -- there had been a divorce and the family relationship had broken down. I come now to the next matter which is of importance in this case, namely the nature of the offence of which the appellant was convicted. The Secretary of State descbed it as a particularly vicious case of wounding. In my judgment, it was, and the Secretary of State would have known, as all judges who exercise criminal jurisdiction know, that in the past 25 years or so the use of knives in the course of disputes has become more and more common and, when they are used to wound, a serious situation arises. As Mr Macdonald accepted, it is very often a matter of luck whether the wound is comparatively slight or it is fatal. Mr Macdonald put the matter clearly and graphically. He said that he accepted that if the knife goes into somebody's abdomen two inches away from where it went in in this case the woman might have died. The Home Secretary, in my judgement, was entitled to take the view that those who are not British citizens and who use knives on the abdomens of their wives are a menace to the welfare of this country. Their continued presence here is not conducive to the public good. The Home Secretary clearly took that view. In addition, the Immigration Appeal Tribunal had evidence before them in the form of written reports by two doctors that, at the material time, namely 1982, the appellant was suffering from some kind of psychiatric disorder. In the opinion of a consultant psychiatrist whose report was before the Immigration Appeal Tribunal, the depressive condition did not justify an order under the Mental Health Act 1959, but it did merit psychiatric supervision and treatment whilst the appellant was in prison. In other words, the Immigration Appeal Tribunal had evidence before it not only that the offence was of a particulary vicious kind but it had been committed by a man who had the misfortune to be suffering from some kind of psychiatric disorder. In my judgment, that was another factor which the Immigration Appeal Tribunal was entitled to take into account. The Tribunal also had evidence in more detail than the Secretary of State had of the social and family circumstances of the appellant. The appellant had told the Tribunal that he had no intention whatsoever of committing this kind of offence again and that he was deeply attached to his children. The Tribunal was sceptical about his credibility on these points. They were entitled to disregard his protestations about his future conduct. What they did, it seems to me on the proper construction of their determination, was to endorse the Secretary of State's judgment. That they were entitled to do. Mr Macondald 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 the public good, and it was only not conducive to the public good if the appellant was likely to offend again. He invited our attention to some comments made by Donaldson LJ (as he was then was) in the case of R v Secretary of State for the Home Department, ex parte Santillo [1981] 2 All ER 897 in the course of his judgment in that case, albeit obiter, where he said this at page 916: "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 art 3 of the directive."

I interpose there to say that was an EEC directive.

"It is also only commonsense and fairness. No one can reasonably recommend the deportation of a foreigner solely because he has a criminal record. If he is, or will on 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 previouse 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 reoffending, 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."

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 offfender 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. Mr Macdonald submits with regard to sub-paragraph (b) of that section that the Immigration Appeal Tribunal, having had its attention drawn to the fact that there had been successful appeals in what Mrs Roberts submitted were more serious cases, had not taken that factor into account, had not reassessed the seriousness of the offence of which the appellant had been convicted and, in consequence, had not directed their minds as to whether the Secretary of State had got it right in taking the view that this offence was so vicious as to merit deportation. That submission, in my opinion, overlooks one very important matter, and I now quote from what the Chairman wrote setting out the determination of the Tribunal. He said:

"We have considered the submissions made to us and the evidence before us. We readily agree with Mrs Roberts that other appellants against similar decisions have been successful, despite having committed more serious offences."

So the Tribunal did take that submission into account. But the Chairman went on as follows:

"However, each case must depend upon its own facts . . ."

That is a truism of the law. The label attached to an offence does not show its nature at all, as I have already explained by reference to knifing leading to death. He went on:

". . . and in this case there is the particular consideration that the appellant had already been recommended for deportation on one occasion, but had been given another chance by the Secretary of State in view of his marriage."

In other words, he was sayig that the Tribunal, though it had borne in mind what Mrs Roberts had said, was dealing with this case on its own facts. That, in my judgment, was the duty of the Tribunal. He then went on to say:

"This marriage is now at an end. We fully realise that if the appellant is deported it will separate him from his children . . ."

That was a factor which the Secretary of State took into account but he went on:

". . . but we are not persuaded by the appellant's evidence (which did not greatly impress us) that his relationship with his children is as close as he would have us believe. He has a brother and two sisters in St Lucia so that he is not without relatives there. The appellant's separation from his children is certainly a compassionate circumstance . . ."

Then come these important words:

". . . but weighing it in the balance together with each of the factors mentioned in paragraph 156 of HC 66, we do not consider that the Secretary of State's discretion should have been exercised differently, and this appeal is consequently dismissed."

I read that determination as saying that they have looked at the case, they have considered the new evidence but, having considered it, they are still of the opinion that the Secretary of State's assessment of the gravity of the offence was right. A particular submission made by Mr Macdonald was that, just like the Secretary of State, the Immigration Appeal Tribunal had not taken into account the fact that there was no evidence that the appellant was likely to commit this kind of offence or, indeed, any other offence again. He submitted that that kind of factor should be taken into account because one of the factors in Regulation 156 was previous conviction. It may well be in some cases the likelihood of committing an offence of a similar kind should be taken into account but that was not the way in which the Secretary of State approached this case. He approached it on the basis that the offence of which the appellant had been convicted was so particularly vicious in the manner in which it was committed that the appellant's continued presence in the United Kingdom was not in the public interest. I myself can see nothing wrong with that. The final matter which Mr Macdonald relied upon was the decision of this court in the case of R v Immigration Appeal Tribunal ex parte Khan [1983] 2 All ER 420. The facts of that case are of no importance but, in giving the leading judgment of the court, the Lord Chief Justice said this at page 423:

"Where one gets a decision of a tribunal which either fails to set out the issue which the tribunal is determining either directly or by inference, or fails either directly or by inference to set out the basis on which it has reached its determination on that issue, then that is a matter which will be very closely regarded by this court, and in normal circumstances will result in the decision of the tribunal being quashed. The reason is this. A party appearing before a tribunal is entitled to know, either expressly stated by it or inferentially stated, what it is to which the tribunal is addressing its mind. In some cases it may be perfectly obvious without any express reference to it by the tribunal; in other cases it may not. Second, the appellant is entitled to know the basis of fact on which the conclusion has been reached. Once again in many cases it may be quite obvious without the necessity of expressly stating it, in other cases it may not."

As a literary exercise, the determination of the tribunal as drafted by the chairman can be criticised. It could have been more explicit. But, in my judgment, when it is assessed against the findings of fact set out in the earlier part of the determination, it is manifest that what the tribunal was saying was that the Secretary of State was right in thinking that an offence of this kind was so serious as to merit deportation. I am not of the opinion that the determination was so sketchy and inadequate that on that ground we ought to allow the appeal. I would dismiss it.

Judgment Two:

SLADE LJ: I agree and only wish to add a few words, principally concerning the nature of the issues which were before McNeill J and which are before this court. There was no question of the learned judge being entitled to enter into a general review of the exercise of the Secretary of State's discretion. Nor is there any question of this court being entitled to enter into such a review. McNeill J was hearing an application for judicial review to quash an order of the Immigration Appeal Tribunal. That Tribunal itself had dismissed the appellant's appeal against a decision of the Secretary of State to deport him, the decision having been made under section 3(5)(b) of the Immigration Act 1971 which, as amended, provides that a person who is not a British citizen shall be liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. The Immigration Appeal Tribunal was hearing the appeal by virtue of section 15(7) of the 1971 Act. By virtue of section 19(1) of that Act the Tribunal would have had the power to allow the appeal if, but only if, it considered that the decision of the Secretary of State was "not in accordance with the law or with any immigration rules applicable to the case" or if it considered that the decision involved the exercise of a discretion by the Secretary of State and that "the discretion should have been exercised differently". In any other case, according to the wording of section 19(1)(b), it would have had no alternative but to dismiss the appeal. The Immigration Appeal Tribunal did not in fact consider that the decision of the Secretary of State failed to accord with the law or with any applicable immigration rules. Nor did it consider that the Secretary of State's discretion should have been exercised differently. Prima facie, therefore, in view of section 19, it was not only entitled but bound to dismiss the appellant's appeal. I cannot, for my part, see any possible grounds on which the Immigration Appeal Tribunal could properly have held that the decision of the Secretary of State was not in accordance with the law or with any relevant immigration rules. He deemed the deportation to be conducive to the public good within the wording of section 3(5)(b) and so stated on what was prima facie a perfectly good ground. Realistically, it seems to me, in order successfully to attack the decision of the Immigration Appeal Tribunal before McNeill J, the appellant would have had to show that the considered views of that Tribunal as to the exercise of the Secretary of State's discretion were so demonstrably wrong as to be assailable on ordinary Wednesbury grounds. Despite Mr Macdonald's sustained submissions, but for the reasons given by my Lord, I agree with the conclusion of the learned judge that the appellant has not shown this. For these brief reasons and the further reasons given by my Lord, with which I respectfully agree, I too would dismiss this appeal.

Judgment Three:

DILLON LJ: I entirely agree with my Lords and I have nothing to add.

DISPOSITION:

Appeal dismissed Leave to appeal to the House of Lords refused

SOLICITORS:

Stockwell and Clapham Law Centre: Treasury Solicitor.