Martinez-Tobon v. Immigration Appeal Tribunal

MARTINEZ-TOBON v IMMIGRATION APPEAL TRIBUNAL

Court of Appeal (Civil Division)

[1988] Imm AR 319

Hearing Date: 12 February 1988

12 February 1988

Index Terms:

Deportation -- conviction for knowingly being concerned in the importation of a controlled drug -- unproven belief that the appellant was a member of an organised drug smuggling operation -- whether an irrelevant consideration, if unproven -- whether Secretary of State's decision to deport under s 3(5)(b) of the Act unlawful. Immigration Act 1971 s 3(5)(b).

Held:

Appeal from Otton J. The appellant had been convicted of knowingly being concerned in the importation of a controlled drug and sentenced to four years' imprisonment. The Secretary of State decided to initiate deportation proceedings pursuant to s 3(3)(b) of the 1971 Act. An appeal was dismissed by the Immigration Appeal Tribunal. An application for judicial review was refused. On appeal the argument was reiterated that the Secretary of State had acted partly on the unproven assumption that the appellant was a member of an organised drug smuggling ring. In that regard the Tribunal should have found that the decision of the Secretary of State was fatally flawed. Held: 1. On the facts and relying on the judgment in the dismissal of the appellant's appeal against sentence, the conclusion was irrestible that there had been an organisation behind the operation in which the appellant was involved. 2. There were no grounds on which the Court should interfere with the discretion as exercised by the Tribunal.

Cases referred to in the Judgment:

R v Martinez (1984) 6 Cr App R (S) 364. R v Immigration Appeal Tribunal ex parte Martinez-Tobon [1987] Imm AR 536.

Counsel:

A Riza for the appellant; NP Pleming for the respondent PANEL: Purchas, Woolf, Mann LJJ

Judgment One:

MANN LJ: There is before the court an appeal against a decision of Otton J given on 24 June 1987; on that day he refused an application for judicial review of a decision of the Immigration Appeal Tribunal dated 2 December 1985. Leave to move that application had been given by myself on 9 October 1986. By its decision the Tribunal dismissed an application by the appellant against a decision of the Secretary of State for the Home Department making a deportation order against the appellant. That decision was taken on 24 May 1985; to it I shall refer. The appellant is a citizen of Colombia, and was born on 4 April 1942; he is, therefore, now some 45 years and 10 months of age. He first arrived in the United Kingdom on 22 January 1974. His immigration and relevant personal history is as follows. On 22 January 1974 he was given leave to enter the United Kingdom for six months as a visitor. He obtained a short extension, and left the Kingdom on 16 September 1974. Four days later he returned, with the benefit of a work permit and was granted leave to enter for twelve months. Successive extensions of that leave were granted, and he was joined by his wife and twin daughters. On 28 July 1978 the appellant, his wife and twin daughters were granted indefinite leave to remain in the Kingdom. Subsequently, the appellant was joined by his three sons, who were granted indefinite leave from 5 January 1979. Until 13 June 1984 the appellant was an arduous man of good character; he worked as a waiter, barman and washer in the hotel and catering trade. On 13 June 1984, however, at the Snaresbrook Crown Court the appellant was convicted of having knowingly been concerned in the evasion of the prohibition of the importation of a controlled drug and was sentenced to four years in prison. The court did not make a recommendation for deportation. The appellant appealed against his sentence to the Court of Appeal, Criminal Division; his appeal is reported in (1984) 6 CR App R(S) 364. The appeal failed, but it is convenient to refer to the report at page 365 for the facts of the case. At that page the Lord Chief Justice, who delivered the judgment of the court, said: "The facts of the case were these. On September 22 last year at about 10.30 in the morning the appellant, who is a citizen of Colombia, was given, and he accepted, a letter which had arrived in the post. He was given the letter by the secretary at Carriers' Restaurant, where he worked as a glass washer. The letter came from Colombia and was addressed to the appellant at the restaurant. Unknown to the appellant it had been intercepted by customs officials and it had been found to have contained 23.7 grammes of a preparation containing cocaine hydrochloride. It was then handed back to the postman and a watch was kept on the destination of the letter. The customs officers, who had been observing the appellant that morning, saw him looking for a letter in the postbox, and later the appellant on request produced that letter for the customs officers from a hidden place in the washing up room in the restaurant where he was working. He said to the customs officers that he had received the letter because it was in his name but he had not known what it contained or who the sender of it was. The cocaine in the letter had a street value of just over @3,000." As I have said, the Crown Court at Snaresbrook did not recommend deportation, but the absence of such a recommendation is no bar to the Secretary of State's deciding to make a deportation order. He so decided on 24 May 1985. The terms of that decision, as communicated to the appellant, were as follows: "On 13 June 1984, at Snaresbrook Crown Court, you were convicted of being knowingly concerned in the evasion of the prohibition on the importation of a controlled drug (cocaine). In view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you." The enabling power for that decision is section 3(5)(b) of the Immigration Act 1971 which provides, so far as is material, as follows: "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." Against that decision of the Secretary of State the appellant appealed to the Immigration Appeal Tribunal. His right so to do derives from section 15(1)(a) and 7(a) of the 1971 Act. The appeal was heard on 15 November 1985 and the determination of the Tribunal was notified to the appellant on 2 December 1985. That is the decision impugned in the judicial review proceedings. It is unfortunate that it is something like two and three quarter years after the decision was made by the Secretary of State that the matter comes before the Court of Appeal, bearing in mind that the decision affects the integrity of a family of seven persons. It is now sought to set aside the order of Otton J and to obtain an order of certiorari to quash the decision of the Tribunal, and an order of mandamus requiring a reconsideration of the appeal to the Tribunal. The relevant statutory provision is section 19 of the Act of 1971. I adapt it in accordance with the direction given in section 19(4) and omit what is immaterial. As adapted, and omitting the immaterial words, it reads: "The Appeal Tribunal on an appeal to them under this Part of this Act (a) shall allow the appeal if they consider (i) 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 involed the exercise of a discretion by the Secretary of State, that the discretion should have been exercised differently; or (b) in any other case shall dismiss the appeal." It follows from the language that there are two stages of the operation which the Tribunal has to perform. The first is a state with regard to legality and the rules; the second is with regard to a review of discretion. The immigration rules applicable to this case are those found in the Statement of Changes in Immigration Rules, laid before Parliament in February 1983, familiarly known as HC 169. The relevant paragraphs are 156 and 159, which I shall read in reverse order. "159. The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 156." Paragraph 156 lists what can be relevant circumstances. They are: 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 representation received on the person's behalf. The Secretary of State provided for the Tribunal an Explanatory Statement dated 13 August 1985, and I read paragraph 11 of that statement: "In accordance with HC 169 paragraph 156, the Secretary of State then carefully considered the appellant's position in the United Kingdom including every relevant factor known to him. The appellant was 43 years of age and had been resident in the United Kingdom for eleven years. He had a good employment record, having been in work for most of the time since September 1974 and it was likely in view of his age and the situation in Colombia that it would be difficult for him to find employment if he were required to return there. He had a strong connection with the United Kingdom in that his family had obtained settlement here in line with that which he had attained after four years in approved employment, his children had also completed their secondary education here, spoke English and had friends here. Furthermore, the appellant had claimed that he sent money for the support of his elderly father and invalid brothers. Nevertheless, the Secretary of State considered that the offence for which the appellant had been convicted was an extremely serious one; he noted that the appellant was believed to be a member of an organised drug smuggling operation; he had involved his employers by having the drugs sent to his place of work, and the rest of the family were largely dependent on public funds. Furthermore the trial judge had indicated that, had he been aware at the right time of the appellant's liability to deportation, he would have considered a recommendation to this effect. In these circumstances, the Secretary of State was not satisfied that the compassionate circumstances were such as to outweigh the public interest and he decided to deport the appellant by virtue of section 3(5)b) of the Immigration Act 1971 and to give directions for his removal to Colombia." The decision of the Tribunal is succinct. After setting out the relevant immigration rules, they write as follows: "The appellant's age is a neutral factor. He has been settled in the United Kingdom for a comparatively short time. His five children are old enough to seek employment if they so wish. The ones who desire to continue their education will no doubt be entitled to grants. The appellant has been in employment for most of the time since he has been in this country. "His wife says that she would not accompany him if he were to be sent to Colombia. We note however that the appellant takes it as beyond question that she would in fact go with him. We accept that in any event the life of this closely knit family would be further disrupted and that that is a strong compassionate factor in the appellant's favour. "The appellant has been convicted of a very serious criminal offence. We have taken into account the probation officer's report and the representations on the appellant's behalf. We accept that the appellant might initially have some difficulty in finding employment in Colombia. "In our judgment when the public interest is balanced against the compassionte circumstances of the case deportation is the right course on the merits." Mr Riza who, if I may say so, has said all that could be said on behalf of this appellant, assaults the Tribunal's decision upon two grounds, albeit the latter was not the subject of persistence. The first ground is that the Tribunal should have found that the decision of the Secretary of State was an unlawful decision in that he took into account an irrelevant consideration which was unproven; that is to say, reverting to paragraph 11 of the Explanatory Statement, his noting of the belief that the appellant was a member of an organised drug smuggling operation. Mr Riza said that a possible explanation of the noting of that belief is that the Secretary of State took into account that there was more than one operation in which the appellant was involved. For my part, I do not think that that is necessarily a possible explanation having regard to the facts which I have recited from the judgment of the Lord Chief Justice; I would have thought that the inference was irresistible in regard to this single operation that there was an organisation; packets of cocaine do not arrive, and are not hidden, at a person's place of employment without some pre-preparation and pre-knowledge of what is occurring. So the inference which Mr Riza invites the court to draw is not an inference which I would draw. I see nothing which should have excited the Tribunal to declare that the decision of the Secretary of State was unlawful by reason of taking account an irrelevant consideration. That leads to the second stage: "Were the Tribunal right in upholding the undoubted discretion of the Secretary of State?" The facts established before the Tribunal, as it seemed, were on the one hand a conviction and a conviction alone; and on the other, the compassionate circumstances which might be regarded as compelling. But the balancing is a matter of discretion, and Mr Riza accepted that this court, sitting in the exercise of a review function, could not interfere unless the balancing was perverse, absurd or irrational, and he did not suggest that it was any of those. Accordingly, I see no reason to interfere with that discretion. For the reasons which I have endeavoured to state, for my part I would dismiss this appeal and uphold the decision of the learned judge; but I find it impossible not to feel sympathy for this family, but it is to state the obvious to say that the Secretary of State has not in fact made the order and no doubt, in accordance with practice, he will reconsider the matter before the making of the order and before giving the removal directions.

Judgment Two:

WOOLF LJ: The learned judge, Otton J, was moved by the compassionate circumstances of the family concerned in this case. My Lord has also referred to those compassionate circumstances. Like my Lord, I am conscious that the consequence of the appellant's being deported will be hard on his family. However, for the reasons indicated by my Lord, this appeal must be dismissed; the decision of the learned judge was right.

Judgment Three:

PURCHAS LJ: I agree with everything that has fallen from my Lords. I have nothing that I wish to add, except my support of the comments, with which both judgments concluded, on the compassionate grounds that are involved in this appeal; but there is no possible ground upon which we could interfere with the judgment of Otton J in these unfortunate circumstances.

DISPOSITION:

Appeal dismissed

SOLICITORS:

Karim Laxman & Co London WC1, Treasury Solicitor