R v. Immigration Appeal Tribunal, Ex parte Darioush Tamdjid-Nezhad

R v IMMIGRATION APPEAL TRIBUNAL ex parte DARIOUSH TAMDJID-NEZHAD

Queen's Bench Division

[1986] Imm AR 396

Hearing Date: 16 July 1986

16 July 1986

Index Terms:

Deportation -- conducive to the public good -- husband of EEC worker -- the factors to be taken into account -- the proper approach where a person is the spouse of an EEC worker. Immigration Act 1971 s 3(5)(b); Treaty of Rome, Article 48; EEC Directive 64/221, Article 3(1); HC 169 paras 140, 145, 154, 156, 159.

Held:

The applicant for judicial review was an Iranian national who arrived in the United Kingdom as a visitor in 1974. He secured extensions of leave as a student to October 1977. A subsequent application for a further extension was refused. Between 1977 and 1980 he was convicted of a series of drug offences of increasing seriousness. In 1979 he married an Irish citizen living and working in the United Kingdom. In October 1981 he was sentenced to five years imprisonment for attempting to smuggle heroin into the United Kingdom. The Secretary of State decided to deport the applicant in accordance with the provisions of s 3(5)(b) of the Immigration Act 1971. The Immigration Appeal Tribunal allowed an appeal by the applicant because the Secretary of State had not taken into account the special factors that are relevant when the spouse of an EEC worker is the subject of deportation proceedings. The Secretary of State reviewed the case and issued a new notice of intention to deport. That decision was appealed: that appeal was dismissed by the Tribunal. On application for judicial review counsel for the applicant submitted following Bouchereau that the Tribunal had erred in its approach. It had placed too much reliance on the applicant's series of convictions. Counsel, while accepting that as the law was presently settled he could not argue the issue before the court, maintained also that the applicant was a refugee. Held: 1. Looking at the Tribunal determination as a whole, it had not misdirected itself in law, and had properly applied the principles set out in Bouchereau. 2. The Tribunal had given proper weight to the various compassionate circumstances in the case, and there were no grounds for interfering with its decision.

Cases referred to in the Judgment:

R v Bouchereau [1981] 2 All ER 924. R v Secretary of State for the Home Department ex parte Musisi (CA The Times 8 June 1985); (for judgment in Queen's Bench Division, see [1984] Imm AR 175) R v Secretary of State for the Home Department ex parte Bugdaycay and ors [1986] Imm AR 8.

Counsel:

L Fransman for the applicant; P Vallance for the respondent PANEL: Taylor J

Judgment One:

TAYLOR J: This is an application for judicial review by Darioush Tamdjid-Nezhad. He seeks an order of certiorari to remove into this court and to quash a decision made by the Immigration Appeal Tribunal and notified on 5 December 1985. By their determination, the Tribunal dismissed the applicant's appeal against a decision of the Secretary of State ordering that he should be deported. The history of the matter is as follows. The applicant is an Iranian national born in 1951. He arrived in this country on 13 March 1974. He was given leave to enter as a visitor for three months. Subsequently he was permitted to remain as a student with various extensions of time until 10 October 1977. On 8 November of that year, some four weeks out of time, application was made on his behalf for a further extension. That application was refused on 15 June 1978. Because the application had been made out of time there was no statutory right of appeal. Meanwhile, it is necessary to refer to the applicant's matrimonial and family history. From early 1977 he had been living with a lady called Joan Riley. She is an Irish national and therefore a national of a member state of the EEC. On 27 October 1978 she gave birth to the applicant's son. On 4 September 1979 the parties were married. A second child was born late in 1980. After the refusal of the extension of time in June 1978, all immigration proceedings were frozen for a period of some five years. The reason for that was that the applicant had been arrested, charged and committed for trial to the Knightsbridge Crown Court on drugs charges. The Secretary of State took the view that whilst there were criminal charges outstanding against the applicant, further consideration of his future in this country had to be deferred. It is convenient to deal with the criminal record of this applicant in full at this stage. He had been convicted in September 1977 of conspiring to contravene the Misuse of Drugs Act at the Marylebone Magistrates' Court. He was fined @50. On 11 January 1980 for possession of a Class A drug, methadone, he was sentenced to 6 months' imprisonment suspended for two years and fined @250. Later the same month, on 29 January, for supplying a controlled drug, Diamorphine, he was sentenced to 2 years' imprisonment suspended for two years with a @300 fine. On 10 September 1981, he was again convicted on two counts of possession of a Class A drug, heroin. That was in breach of the suspended sentence of January 1980. On that occasion an immediate sentence of 21 months' imprisonment was imposed. A month later the applicant was convicted of his most serious offence, namely, the attempted importation of heroin, when he was sentenced to 5 years' imprisonment. The circumstances of that last offence should be mentioned. He had been arrested on 28 March 1980 at Heathrow after the discovery of some 90 grams of heroin concealed in an Easter egg in his baggage. The street value of that heroin was estimated as at that time, at @7,200. The case was presented on the basis that the applicant was the principal in a commercial smuggling operation. He had acted as the organiser of the importation. He had arranged for his wife, accompanied by another female, to collect the drugs from a supplier in Paris and to return with them to the United Kingdom. The other female was a known drug addict. It was believed that she was substantially in debt to the applicant through the purchase of heroin and that by having that hold over her he had concerned her into participating in the offence, so as to write off her debt. When interviewed, both the applicant and his wife were uncooperative with the customs officers and gave no assistance. The wife was sentenced to 3 years' imprisonment for her part in this affair. The question of this applicant's future was reviewed in 1983. He had been interviewed in prison. He expressed a fear of being removed to Iran, saying that he would have a lot to answer for if and when he returned there. However, later in the interview he expressed no fears about his returning to Iran despite his drug convictions. He asserted that he had stopped taking drugs and was now cured of his addiction. He had had three days' medical treatment in Brixton Prison when he was first admitted but no more after that. The Secretary of State decided on 23 August 1983 that whilst there were compassionate aspects it would be conducive to the public good to make a deportation order. He also expressed himself not to be satisfied that there was such well founded fear of persecution as to justify granting asylum. The applicant gave Notice of Appeal against the Secretary of State's decision on 8 September 1983. The matter came before a Tribunal on 9 May 1984. The Tribunal allowed the appeal because in considering the deportation order the Secretary of State failed to take into account the applicant's status as a member of a family of an EEC national which created special considerations the Secretary of State was bound to take into account, as will become evident later in this judgment. The Secretary of State reconsidered the case in the following year. On 25 May 1985 he again came to the conclusion that he should make a deportation order. This time he had regard to the relevant provisions relating to the families of EEC nationals. He expressed his decision in these terms, that he considered the applicant's offences and conduct to be such that he posed a threat to public policy. The applicant once again appealed against the decision. That appeal was heard by the Tribunal which gave its determination on 5 December 1986. The appeal was dismissed. It is that determination and dismissal which form the subject of this challenge. I should say that in the interim the Secretary of State in October 1985 considered the applicant's claim for asylum and rejected it without right of appeal on 21 October 1985. The relevant provisions of the EEC law and the Immigration Rules are as follows. By the Treaty of Rome, under Article 48, provision is made for the freedom of movement of workers within the territories of the Member States. It is accepted in this case that the applicant's wife is an EEC worker. That freedom of movement, however, is subject to limitations justified on grounds of public policy, public security or public health. There is a Directive 64/221 made under the Treaty which provides as follows by Article 3(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."

Those provisions are reflected in the Immigration Rules HC 169 and in particular Rules 140 and 145, which so far as relevant read as follows:

"A person admitted in accordance with Part VI of these Rules may normally remain in the United Kingdom for 6 months before applying for a 'Residence Permit for a National of a Member State of the EEC'. Such a residence permit will be issued if the person . . . (c) is a member of the family . . . of (an EEC National). Such a person will be issued with a residence permit if he is a Community national, or granted an extension of stay if he is not, in the same terms as those relating to the spouse or persons on whom he is dependent." Rule 145 is as follows: "A person who meets the requirements of paragraph 140 . . . (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."

It is common ground that having regard to these provisions the Secretary of State, considering a possible deportation order under section 3(5)(b) of the Immigration Act 1971, has to consider two principal issues. First, is the appellant eligible for deportation in the sense that he falls within the "public policy, public security or public health" exception to the prohibition against deportation contained within paragraph 145 of the Rules? Secondly, if the applicant is so eligible, would deportation in any event be the right course on the merits of the case having regard to any compassionate circumstances which would be considered in the light of paragraphs 154, 156 and 159 of HC 169? Mr Fransman, appearing for this applicant, argues that the Tribunal was in error in its approach to each of these two points. Dealing first with the eligibility of this applicant to be deported, Mr Fransman referred me to the case of R v Bouchereau [1981] 2 All ER 924 which was a decision of the European Court. The relevant paragraphs of the judgment of the court, taking them in the most convenient order are, first, paragraph 35. That indicates what the concept of public policy is within the meaning of the legislation. It reads as follows:

"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."

There is no issue in this case as to the appropriateness of regarding the importation of heroin as falling well within the category of being a genuine and sufficiently serious threat to public policy. I go on to deal with paragraphs 26 to 30 of the judgment which read as follows: "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 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 art 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."

Those being the principles, which it is common ground are applicable in this case, one has to look at the determination of the Tribunal to see to what extent they complied with those criteria. Mr Fransman relies upon certain passages as showing, in his submission, that the Tribunal failed to appreciate that in any event the conduct of the applicant had to be shown to constitute a threat to public policy. He points to the passage at page 48 of the bundle, page 5 of the determination:

"Mr Gammons based his case on the concept that the appellant's conduct was so fundamentally against the interests of society that even if there were no present or future threat these matters were outweighed."

That passage is repeated almost word for word at the top of page 50 of the bundle, page 7 of the determination, in these terms:

"Mr Gammons' submission was that the crime for which the appellant was convicted was so fundamentally against the interests of society that even if there were no present or future threat to society these matters were outweighed by his past record. That the Crown Court took the same view is underlined by the 'heavy' sentence imposed in 1981. Further this was not an isolated incident. The appellant had several previous convictions for drug related offences and had not learned from his mistakes."

It is quite clear that those two citations from the submissions of the advocate appearing on behalf of the Secretary of State would, taken at face value and if they had been adopted by the Tribunal, have led the Tribunal into error, because the submission, certainly as summarised in those two passages, suggests that the conduct giving rise to the convictions in the past might of itself have been of such character as to obviate any need for considering whether it amounted to a threat. It is common ground in this case that there must be shown to be a threat, although Mr Vallance points to two possible routes by which one might reach the conclusion that a threat existed. He says that there can be, on the criteria laid down in Bouchereau, a threat; firstly, if there is shown to be in the individual the existence of a propensity to act in the future in the same criminal way as he has in the past and that criminal way would constitute a threat to public policy; secondly, he says that there can be situations where the past conduct giving rise to the previous criminal offence or offences can of itself pose a threat, if it is sufficiently grave conduct and it can therefore be said by its gravity to pose a threat to public policy. When one goes on further in the determination of the Tribunal one sees the conclusions to which it arrived. The immediately following passage after that which I have quoted reads as follows:

"He has a propensity to commit such offences which the Secretary of State had to take into account and so must we."

At the foot of the same page (page 7 of the determination) the Tribunal say this:

"We have weighed this together with the other compassionate circumstances in the case and all the factors in the appellant's favour, against his propensity to commit drug related offences without any expression of remorse or compassion for those who may be affected (other than his family) and for financial gain."

Those two passages clearly show that the Tribunal concluded that the applicant had a propensity to commit offences of the kind which he had committed in the past. They went on at the end of the determination (page 8) to say this:

"We think the gravity of the appellant's offences and his conduct pose a present threat to public policy which is not outweighed by the compassionate circumstances personal to him."

That passage shows that the Tribunal found that a threat existed by the second of the two routes referred to by Mr Vallance, namely, by simply looking at the conduct leading to the previous convictions, assessing the gravity of it and deciding that that gravity in itself posed a threat to public policy; in other words, Mr Vallance submits that the Tribunal, though it incorporated in its determination twice a flawed submission on the part of the advocate appearing for the Secretary of State, arrived at its own conclusions on a correct basis of law and indeed on two bases of law, each of which was a sound one upon which the Tribunal was entitled to find and which the evidence was capable of supporting. For those reasons, Mr Vallance submits that there is no merit in this first submission on the part of the applicant. I agree entirely with the submissions that he has made. It seems to me that the Tribunal correctly directed themselves on the tests that they had to apply, following the case of Bouchereau, and they arrived at their conclusion on both bases said by the European Court to be proper bases upon which to conclude that the free movement of workers might be impugned in the particular circumstances of a case where criminal convictions have occurred. I turn therefore to the second argument which is that notwithstanding the court found the applicant was eligible for deportation, the decision to deport him was wrong in all the circumstances of the case, having regard particularly to the compassionate grounds which were raised. This involves a balancing act. The Tribunal fully set out the compassionate circumstances which ought to be taken into account. They referred to the applicant's marriage. They referred to his children. They referred to his attempts to train for a job whilst he has been in prison. They took account of his protestations of good intention for the future and, indeed, the evidence in support of that given by others on his behalf. They specifically adverted to the situation in Iran and the problems which might face the applicant were he required to return there. At the end of their determination, in the passage which I have already recited, they did the balancing act which is required and came to the conclusion that the threat posed by the applicant's propensity and by the gravity of his conduct in the past outweighed the compassionate circumstances. I can find no grounds for concluding that they approached that matter on a wrong basis or that they arrived at a wrong conclusion. Accordingly, that ground too must fail. Those were the only two grounds which were effectively argued by Mr Fransman. The rejection of them must therefore result in this application being dismissed. I should, for the sake of the record, record that Mr Fransman did leave open an entirely different argument which was based upon the application for asylum. The assertion by that argument is that the applicant is a refugee. To deport him would be contrary to the Convention and Protocol on the Status of Refugees and the provisions of the Convention are imported into the Immigration Rules. Mr Fransman's argument, put very succinctly on this basis, was that this court has the power to determine whether in fact the applicant is a refugee or not. He recognised that to argue that would not be open to him as the law stands, having regard to the decision of the Court of Appeal in two cases, R v Secretary of State for the Home Department, ex parte Musisi (The Times 8 June 1985) and R v Secretary of State for the Home Department, ex parte Bugdaycay and Others [1986] 1 WLR 155. Since both of those cases are apparently to be heard by the House of Lords, Mr Fransman wishes to keep this argument open. I, of course, am willing to record his reservation about that, as indeed I have done. But on the arguments which were open to him today, persuasively though he has put them, this application must fail.

DISPOSITION:

Application dismissed

SOLICITORS:

Winstanley Burgess London EC1; Treasury Solicitor

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