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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v AC (Turkey) [2009] EWCA Civ 377 (25 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2009/377.html Cite as: [2009] EWCA Civ 377 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: HX/24861/2002]
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE SMITH
and
LORD JUSTICE HOOPER
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Applicant |
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- and - |
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AC (TURKEY) | Respondent |
____________________
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Mr R Scannell (instructed by Glazer Delmar) appeared on behalf of the Respondent.
____________________
Crown Copyright ©
Lord Justice Laws:
"76. We have come to the conclusion that the decision that the Claimant should be deported is not one which is outside the range of responses open to a reasonable Secretary of State. We attach the greater weight to the very serious offence of violence and to the repugnancy which we consider the public would rightly feel for someone who committed such an offence, showed no remorse of real significance and has so frequently lied about it. She has offered no credible explanation and what she says about self defence is untrue. So it is at best a motiveless but very violent offence. The low risk assessment cannot be sustained on the current material. To deport a mother who is not the primary carer and who does not live with the child, and who has not lived with her for most of the years of the child's life as a result of her own criminal acts, is not unreasonable in those circumstances, even though it will put in real jeopardy her continuing relationship with the child. She may be anxious for the well-being of the child but the report from CAFCASS does not provide a foundation for her concerns in that respect. She may be concerned about how the child will develop without her and in view of the attitude the father is likely to adopt. We do not regard the impact on her of those concerns, though not shown to be well-founded, as inconsiderable. Nonetheless, the deportation is in our judgment a not unreasonable balancing of the competing interests."
"20. In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality."
"In a deportation appeal under section 63(1) of the 1999 Act, the adjudicator has an original statutory discretion as provided in paragraph 21(1) of Schedule 4 of the 1999 Act. The discretion is to balance the public interest against the compassionate circumstances of the case taking account of all relevant factors including those specifically referred to in paragraph 364 of HC 395. Essentially the same balance is expressed as that between the appellant's right to respect for his private and family life on the one hand and the prevention of disorder or crime on the other. Where a person who is not a British citizen commits a number of very serious crimes, the public interest side of the balance will include importantly, although not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality. It is for the adjudicator in the exercise of his discretion to weigh all relevant factors, but an individual adjudicator is no better able to judge the critical public interest factor than is the court. In the first instance, that is a matter for the Secretary of State. The adjudicator should then take proper account of the Secretary of State's public interest view."
Judge LJ, as he then was, stated:
"The 'public good' and the 'public interest' are wide-ranging but undefined concepts. In my judgment (whether expressly referred to in any decision letter or not) broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the United Kingdom are engaged. They include an element of deterrence, to non-British citizens who are already here, even if they are genuine refugees and to those minded to come, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation. The Secretary of State has a primary responsibility for this system. His decisions have a public importance beyond the personal impact on the individual or individuals who would be directly affected by them. The adjudicator must form his own independent judgment. Provided he is satisfied that he would exercise the discretion "differently" to the Secretary of State, he must say so. Nevertheless, in every case, he should at least address the Secretary of State's prime responsibility for the public interest and the public good, and the impact that these matters will properly have had on the exercise of his discretion. The adjudicator cannot decide that the discretion of the Secretary of State "should have been exercised differently" without understanding and giving weight to matters which the Secretary of State was entitled or required to take into account when considering the public good."
"As a general matter, the respondent, representing the public interest, is entitled to take the view that foreign nationals who commit offences of this kind, even if apparently isolated and out of character, should not remain in the United Kingdom, regardless of future risk; and that society is entitled to express its revulsion by removing the perpetrators of such crimes (N (Kenya) [2004] EWCA Civ 1094). Those considerations plainly drove the decision of the IAT in July 2004. So too did the view, as expressed in the IAT's determination that, contrary to the report of Jackie Craissati, a forensic psychologist, whose report was before it, the mystery concerning the appellant's motivation meant that it was impossible to say that the appellant was at low risk of re-offending."
"36. In considering what we might describe as the N (Kenya) issue, Mr Smith urged us to disregard the fact that some ten years have elapsed since the appellant's offence and conviction. We agree that the mere passage of time is in no sense to be regarded as automatically diminishing the extent to which society might wish to express its revulsion by removing a person such as the appellant from its midst. On the other hand, what has happened in the intervening period plainly can have a part to play, not only by providing material for the appellant to place on her side of the proportionality balance, but also in assessing the extent of the public policy factors in favour of removal. Although, as N Kenya makes plain, societal revulsion may require removal irrespective of the extent to which the person concerned has been punished in the host state by imprisonment or other means, on the particular facts of this case, it would in our view be wrong to ignore the obvious fact that, since her release from prison, the appellant has continuously had to live with the direct, significant effects of her offence, so far as concerns her relationship with S, and the difficulties stemming from the fact that S could no longer live with the appellant whilst the latter was in prison. Those effects will continue to beset the appellant for the foreseeable future; perhaps for the rest of her life.
37. On the evidence available to it, we can well just understand how the IAT in 2004 came to its conclusions regarding risk of re-offending. However, with the benefit of over four years' hindsight and the latest evidence of Ms Craissati, together with the appellant's own contrite view of her behaviour, we conclude that the appellant's risk of committing such an offence again must be low.
38. Notwithstanding what we have just said, however, the fact remains that the respondent can still point to very significant public interest reasons for deporting the appellant. With that in mind, we turn to analyse the factors lying on the other side of the scale.
39. In making our assessment of the appellant, we are conscious of the fact that, at important points in her life, she has shown herself to be a liar. She lied to the immigration authorities about her reasons for wanting to come to the United Kingdom, making a false claim for asylum when her real motivation was to join MA. She lied to the jury, in claiming that she had not been the person who had so savagely attacked her victim. We have, accordingly, approached the appellant's evidence concerning her relationship with S and MA's alleged bad behaviour in this light.
40. Having said this, and having had the opportunity of seeing and hearing the appellant give evidence, and of hearing Ms Cohen and reading the various professional reports stretching over several years, we are fully persuaded that the appellant is telling the truth about her relationship with S, her desire to ensure that S's best interests are served (even when these do not coincide with what the appellant might wish for herself) and the appellant's description of the difficulties she has encountered with MA."
"45. In conclusion, balancing all relevant factors, we find that in the (plainly unusual) circumstances of this case, the removal of the appellant, pursuant to the unrevoked deportation order would be disproportionate and thus a violation of Article 8 of the ECHR."
Lady Justice Smith:
Lord Justice Hooper
Order: Application refused