B v Secretary Of State For Home Department [2000] EWCA Civ 158 (18 May 2000)

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Case No: IATRF 2000/0012/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM IMMIGRATION APPEAL
TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 18 May, 2000

1. The appellant was born in Sicily in December 1955. He settled with his parents in the United Kingdom when he was 7 years old. His parents are now elderly and not in the best of health, but he has brothers here to whom they can look for help. In Sicily he has some relatives on his mother's side, and he must have grown up bilingual. He has been to Sicily twice in the last twenty years, the last time in 1991-2. He is not a British citizen.

2. He married in 1973 and has two children. In 1974 he was convicted of assaulting the son, who had been born shortly before the marriage, and given a suspended sentence of a year's imprisonment. In 1994 he was convicted by a jury on a series of counts of gross indecency towards and indecent assault upon his daughter. He was sentenced to a total of 5 years' imprisonment. There was no recommendation for deportation, but this reflected the legal practicalities rather than the merits of the case.
3. It is to protect the daughter's identity that the appellant is identified in this judgment only by an initial.
4. The appellant's wife divorced him, and neither she nor his children now have anything to do with him. Prior to his release from prison the Home Secretary notified him that he was considering deportation. After release the appellant was bailed to live with his parents, and in April 1997 the Home Secretary decided to make a deportation order against him.
Law

5. Section 3(5) of the Immigration Act 1971 renders a person who is not a British citizen liable to deportation if, among other things, the Home Secretary deems his deportation to be conducive to the public good. Section 15(1)(a) and (7)(a) afford an appeal direct to the Immigration Appeal Tribunal on the merits of a decision to deport on this ground. From there a further appeal lies to this court on any question of law by virtue of section 9 of the Asylum and Immigration Appeals Act 1993.
6. It is common ground that, since the duty of the Immigration Appeal Tribunal is to allow an appeal if it considers that the Home Secretary's discretion ought to have been differently exercised, the IAT's decision has the status of a first-instance decision replacing that of the Home Secretary. It is also common ground - and this is a matter of considerable significance - that among the questions of law which may arise on further appeal to this court is the question whether the decision to deport infringes the principle of proportionality.
7. Proportionality has entered this branch of our domestic law in two interlocking ways. The appellant, as an Italian citizen, is a Community national. He is therefore entitled to the benefit of what was Article 48 of the Treaty of Rome (now renumbered 39 by the Treaty of Amsterdam), which guarantees freedom of movement for workers within the European Union. The right, however, is "subject to limitations justified on grounds of public policy". These limitations are themselves qualified by Article 3 of Directive 64/221 which provides:
(1) Measures taken on grounds of public policy ...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...
8. "Public policy" is a satisfactory characterisation of "public good" as a ground on which, under s. 3(5), deportation must be based.
9. These provisions were construed by the European Court of Justice in R v Bouchereau [1978] QB 732, 759, as nevertheless permitting deportation where, without any evidence of continuing propensity, past conduct alone constitutes a present threat to the requirements of public policy. The Court concluded:
" ... previous criminal convictions are relevant only in so far as the circumstances which gave rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy."
10. The courts of this country have upheld deportations in such circumstances: see Al Sabah v IAT [1992] Imm AR 223, Marchon v IAT [1993] Imm AR 384, Goremsandu v Home Secretary [1996] Imm AR 250.
11. The further qualification affecting all such decisions, however, is that deportation must be a proportionate measure in all the circumstances. The source of the doctrine is the fundamental principle of the common law of the EU spelt out by Advocate-General Warner in Bouchereau (at 743):
"... measures taken by member states in respect of nationals of other member states must be reasonable and not disproportionate to the gravity of their conduct."
12. The Court (at 760) described the state's side of the balance in these terms:
"In so far as it may justify certain restrictions on 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 to the social order which any infringement of the law involves, of a genuine and sufficiently serious threat affecting one of the fundamental interests of society."
13. But a second requirement of balance has entered the picture ahead of the coming into force on 2 October this year of the Human Rights Act 1998. Article 6 of the consolidated Treaty on European Union, made in Maastricht in 1992 and amended with effect from 1 May 1999 by the Treaty of Amsterdam, provides:
(3) The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
14. This provision enshrines the earlier case-law of the ECJ: see Elliniki Radiophonia Tileorassi AE v Pliroforissis and Kouvelas [1994] 1 ECR 2951. It means that in the imposition of limitations on the right of free movement of EU nationals, member states must respect any relevant provision of the European Convention on Human Rights.
15. The provision of the ECHR relevant to the present case, as it will be to most deportation cases, is Article 8:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
16. It may be necessary in a future case to examine more closely than is going to be necessary in this case where the sheer gravity of an offence, absent any propensity to repeat it, fits within Article 8(2). For the present the important point is that the undoubted interruption of the appellant's private and (such as it is) family life by deportation has to be justified as being "necessary" for one of the prescribed purposes; and what is necessary is measured in the jurisprudence of the European Court of Human Rights by what is proportionate.
17. Neither Mr Ian Macdonald QC for the appellant nor Mr Mark Shaw for the respondent has suggested that the test of proportionality in the two jurisdictions (those of the Luxembourg and the Strasbourg courts) differs. In essence it amounts to this: a measure which interferes with a Community or human right must not only be authorised by law but must correspond to a pressing social need and go no further than is strictly necessary in a pluralistic society to achieve its permitted purpose; or, more shortly, must be appropriate and necessary to its legitimate aim: see Schwarze, European Public Law, ch.5; Tridimas, The General Principles of EC Law, pp. 89-93; Lester and Pannick, Human Rights Law and Practice, para. 3.10; Grosz, Beatson and Duffy, Human Rights, pp. 112-4; Starmer, European Human Rights Law, pp. 169-180; Mountfield and Wadham, The Human Rights Act 1998, pp. 13-16.
18. It follows that among the issues of law for this court in a case such as the present is the question whether deportation constitutes a proportionate response to the appellant's offending. Being a question of law, it has to be answered afresh, even if reaching an answer involves taking a much closer look than we are accustomed to at the merits. I will turn first to the factual basis of these before returning to the important question of how much deference is due to the Immigration Appeal Tribunal's appraisal of them.
Merits
19. The series of crimes of which the appellant was convicted on his plea of not guilty amounted, as described by the trial judge in passing sentence, to prolonged and systematic child abuse. It started when his daughter was 12. It stopped short of intercourse, but it involved simulated copulation, fondling of the breasts and digital penetration of the vagina. By the time she reached an age where she could legally consent the daughter was so distressed and confused that it was not possible for the Crown to disprove consent; but it was not until she was 18 years old that the offences stopped. Treating the appellant as a man of good character (which he was not) but noting that he had shown no contrition whatever, the judge regarded his offending as extremely serious of its kind and passed sentences amounting to 5 years' imprisonment.
20. There is no need for further characterisation of this odious conduct. But one of its effects is that the appellant's family have left him, so that there is no perceptible risk of repetition of what was intra-familial abuse. It is only if he starts another family that the risk will arise, and as a registered offender he will then be under the vigilant eye of the authorities. All of this is common ground.
21. The IAT summarised its findings in this way:
"These were offences committed first upon a child, pursured for years, and not brought to an end until his daughter went to the police.
Mr [B] is a man who, over the years, has done well enough for himself in business and employment. He is not without resource. That will help him in resettlement. He has been in this country for many years, and that must surely be the factor of most weight against deportation.
His relationship with his former wife and daughter is destroyed, his home is gone. His parents and brothers are here. He has more relatives in Italy than he was prepared to admit.
That he would have to leave his parents when they most need him is a compassionate circumstance. The effect upon them is also relevant...
The offences are not the first. They were committed over a long period. What the trial judge said about them is undoubtedly justified. They were very serious indeed.
There are exceptional cases in which past conduct itself justified deportation of an EC citizen: Marchon [1993] Imm AR 384. In any event, and whilst we accept that there is little likelihood that the Appellant would ever again sexually assault his daughter, he has shown himself over the years to be a man unable to control his passions or to fully appreciate the blame for his actions. He displays in our view a propensity to act in a manner contrary to public policy."
22. The IAT went on to consider Article 8 of the ECHR: they held that all the human rights considerations which arose were taken care of by the EU principles which they had applied.
Deference
23. Mr Shaw submits that, notwithstanding that proportionality is a question of law, proper regard must be shown by this court for the IAT's view. As a general proposition this is perfectly acceptable, but it begs the question of what a proper regard involves.
24. In a seminal passage of his speech in R v DPP, ex parte Kebilene [1999] 3 WLR 972, 993-4, Lord Hope of Craighead considered what he called (drawing on a phrase in Lester and Pannick, Human Rights Law and Practice, para. 3.21) the discretionary area of judgment.
"In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention...It will be easier for such an area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection."
25. An illustration of the relationship of the court's to the executive's judgment of ECHR issues can be found in R v Home Secretary, ex parte Turgut (C.A. 28 January 2000) [to be reported in Jordans UKHR series]. This was a challenge under Article 3, which imposes an unconditional ban on torture and inhuman or degrading treatment, to the Home Secretary's refusal of exceptional leave to remain in the case of a Turkish Kurd whose claim to asylum had wholly failed. The court, not without hesitation in the face of a mass of documented human rights abuses directed at Kurds, declined to overset the Home Secretary's view that the applicant faced no appreciable risk of ill-treatment. Simon Brown LJ pointed out that on the coming into force of the Human Rights Act 1998 "the threshold of irrationality will have to be lowered" in relation to Convention rights, but that even before that time arrived the court, at least in the case before it, was "hardly less well placed than the Secretary of State himself to evaluate the risk" in the light of the relevant materials.
26. In the present case much the same is true. The Home Secretary's decision is superseded in its entirety by the IAT's. The IAT's decision includes (a) findings of primary fact derived chiefly from oral evidence, (b) inferences of fact, (c) propositions of law and (d) reasoning leading to its conclusion.
The first of these elements must be treated with the respect always accorded to findings of primary fact from oral testimony. The second can be readily scrutinised and evaluated. The third and fourth are matters entirely open on appeal. It is to be noted that in the present case, in contrast with many cases decided by the IAT, little if anything turns on the conditions obtaining in Sicily or elsewhere in Italy. If it were otherwise - if, that is, the IAT's fund of knowledge about conditions elsewhere in the world had been drawn upon - this court would have expected to defer to at least that much of the decision save to the extent that it could be shown to be wrong.
27. But once we have taken the primary facts from the IAT, this is a case in which we are as well placed as that tribunal to decide what to make of them. Moreover, the IAT has in my view got the law wrong in a potentially important respect: for reasons set out earlier in this judgment, Article 8 of the ECHR is not superfluous once EU law has been considered. Interference with free movement is one thing; interference with private and family life is another. Even where, as here, both arise from the same deportation they enhance the private interests against which public policy is to be set and to which deportation must be a proportionate response.
Conclusions
28. In agreement with the other members of the court, I do not consider that the IAT's decision, or therefore the Home Secretary's, can stand.
29. Mr Shaw points out that, at least in the IAT's view, this was not a case simply of past offending, though it had lasted for 6 years and was extremely serious of its kind. Their view was that the appellant's earlier conviction for assaulting his infant son, taken together with the later convictions for abusing his daughter, showed "a propensity to act in a manner contrary to public policy". He draws attention to the view of the probation service that the appellant "continues to pose a risk to previous victims and to those he may form a relationship with" and to the implications of the appellant's continuing refusal to accept responsibility for his acts.
30. In Goremsandu (above) Stuart-Smith LJ said:
"In my judgment, it is open to the Secretary of State to decide that some offences are so serious, in the sense that they are sufficiently repugnant to the generally accepted standards of morality, that the continued presence in the community is unacceptable, irrespective of a propensity to commit further offences of a similar character. If that is so, the only question that arises is whether a decision of the Secretary of State and the Immigration Appeal Tribunal can be attacked on the grounds of Wednesbury unreasonableness..."
31. I do not, however, accept Mr Shaw's contention that that case, concerning as it did a Zimbabwean national, was decided as if the principles of EU law applied: it was the appellant's submission that it should be so decided, but the court rejected this in favour of a Wednesbury test, as the citation indicates. What we, by contrast, have to decide for ourselves, in the light of the IAT's findings of fact and the totality of the available evidence, is whether deportation is a proportionate response to what the appellant has done and to what he now is. This can and should be approached methodically.
32. First, it is clear that sufficiently serious offending, with or without a propensity to reoffend, can make deportation under s. 3(5) of the Immigration Act 1971 appropriate. Deportation, in other words, is authorised by law in cases of this kind.
33. Next, one asks what pressing social need calls for deportation of this offender. The answer is that offending of this gravity makes the continued residence here of a foreign national contrary to public policy and the public good: the United Kingdom is not required to keep here someone whose conduct strikes so deeply at its social values and strains the tolerance of even a broadminded society.
34. Lastly, one asks whether to remove this offender will nevertheless be in all the circumstances a disproportionate response: does it go further than is necessary in a tolerant society to achieve the legitimate aim? In one sense - a narrow sense - this question answers itself: once deportation is established as a legitimate aim, nothing short of deportation itself can achieve it. But this is not, in my judgment, the right way to look at it. The relevant aim is the achievement of the ends of public policy and the public good.
35. This is an offender whose propensity to offend may still exist, but whose opportunities to offend are now small. What really matters is the seriousness of what he has already done to his own children. The family factors are not strong: his parents, with whom he is living as a condition of his bail, have other children here to lean on. He is not without relatives in Sicily, and he has business skills which will travel with him. If it stopped here, I would hold that deportation was a proportionate response. But there is one further factor of real weight: he has lived in this country since he was a small boy - it is his home. The appellants in all three of the cases mentioned earlier in this judgment where deportation was held to be an admissible measure purely on the ground of the gravity of their offences had in each case come to this country for the first time as young men: they could claim no such ties as this appellant can.
36. I have no doubt that the Home Secretary's view that deportation was nevertheless merited was legitimately open to him: even the additional factor of near-lifelong residence here would not necessarily have led this court to intervene on traditional public law grounds. But our public law, for reasons I have explained, now has to accommodate and give effect to the requirements of EU law and, through EU law, of the ECHR. It means making up our own minds about the proportionality of a public law measure - not simply deciding whether the Home Secretary's or the IAT's view of it is lawful and rational.
37. What in my judgment renders deportation a disproportionate response to this appellant's offending, serious as it is, and to his propensity to offend such as it may now be, is the fact that it will take him from the country in which he has grown up, has lived his whole adult life and has such social relationships as he possesses. It would negate both his freedom of movement and respect for his private life in the one place, the United Kingdom, where these have real meaning for him. In relation to what is now Article 39 of the EU Treaty this is self-evident. In relation to Article 8 of the ECHR, it is because the jurisprudence of the Strasbourg court has carried the notion of private life beyond simple autonomy and "to a certain degree" into "the right to establish and develop relationships with other human beings" (Niemietz v Germany (1993) 16 EHRR 97, para.29). What is proposed in the present case, although in law deportation, is in substance more akin to exile. As such it is in my judgment so severe as to be disproportionate to this man's particular offending, serious as it was, and to his propensities.
38. In these circumstances it is not necessary to examine Article 8(2) in order to ensure that the reason for deportation is one recognised by the Convention. But it may be relevant to observe that it would have to be in the interests of public safety, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others that a decision to deport would have to be justified, and that this is likely to engage questions of propensity rather than of past conduct. If so, deportation on the present facts, which turn chiefly on the gravity of past conduct, would become that much harder to justify.
39. I would allow this appeal.
LORD JUSTICE WARD:

40. I have read the judgments in draft prepared by my Lords and I gratefully adopt the facts and law as set out by them.
41. Stated very shortly the issue in this appeal is whether or not the appellant's personal conduct is such a present threat to the requirements of public policy that his deportation is a proportionate response.
42. Although when sentencing him, the recorder said that his "acts stopped short and considerably short of the full act of incest", the appellant's sustained abuse of his daughter was so dastardly as to present "a genuine and sufficiently serious threat affecting one of the fundamental interests of society", as it was expressed in R v Bouchereau [1978] QB 732, 760. Even though his offending may be characterised as intra-familial, and although the wariness of the Social Services Departments should ensure that he will never again have the opportunity to give vent to his perverted passions, I would not quibble with the finding of the Immigration Appeal Tribunal that:-
"He displays, in our view, a propensity to act in a manner contrary to public policy".
43. Thus the real question is whether deportation is a proportionate response to the threat he poses to the requirements of public policy. I am in no doubt that the answer is, "No". This appellant may not have been born here, but he was to all intents and purposes bred here. His links with Sicily are now tenuous. His ties to this country are real and substantial. His life is here. The demands of public policy in this particular case are not so compelling as to justify interference with his right to respect for his private life and to his albeit reduced family life which is conducted in England.

44. So for the reasons more fully given in my Lords' judgments, I too would allow this appeal.

LORD JUSTICE SIMON BROWN:
45. The deportation of an EC national can be justified only by the existence of "a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society" - see R v Bouchereau [1978] QB 732, 760. And even if such a threat exists, deportation, because it interferes with the fundamental right of free movement of workers (Article 48, now 39, of the Treaty of Rome) and the right to respect for private life(Article 8 of ECHR), must be proportionate. The requirement for proportionality in this context means that deportation must be both appropriate and necessary for the attainment of the public policy objective sought - here the containment of the threat - and also must not impose an excessive burden on the individual, the deportee.
46. Given, as I would accept, that the IAT found and were entitled to find the existence of a relevant threat to the requirements of public policy arising both from the intrinsic seriousness of the appellant's offending (see Marchon v IAT [1993] ImmAR 384) and from a propensity to reoffend, the remaining and determinative issue for them was that of proportionality.
47. It was common ground before us that proportionality involves a question of law and that, on a statutory appeal of this nature, the court is required to form its own view on whether the test is satisfied, although, of course, in doing so it will give such deference to the IAT's decision as appropriately recognises their advantage in having heard the evidence. This task is, of course, both different from and more onerous than that undertaken by the court when applying the conventional Wednesbury approach. It would not be proper for us to say that we disagree with the IAT's conclusion on proportionality but that, since there is clearly room for two views and their view cannot be stigmatised as irrational, we cannot interfere. Rather, if our view differs from the IAT's, then we are bound to say so and to allow the appeal, substituting our decision for theirs.
48. In common with my Lords, that indeed is the position I have arrived at. Far and away the most important single feature of this part of the case is that this appellant has lived in England for the past 36 years, having arrived here at the age of 7 and having visited Sicily twice only in the past 20 years, once in 1982-1983, and secondly and lastly in 1991-1992. Although he is an Italian and not a British citizen, he has infinitely closer associations with this country than ever he has had with Italy. All this serves to distinguish his situation completely from that of the unsuccessful appellants in the various other cases we were shown. To justify this appellant's deportation as proportionate would in my judgment require significantly more in the way of the intrinsic gravity of offending and/or the risk of reoffending than on any view of the facts has been established against him.
49. I too would allow this appeal.

	B	Appellant
	- and -
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	Respondent

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B v Secretary Of State For Home Department [2000] EWCA Civ 158 (18 May 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/158.html Cite as: [2000] EWCA Civ 158, [2000] 2 CMLR 1086, [2000] INLR 361, [2000] Imm AR 478

England and Wales Court of Appeal (Civil Division) Decisions