Case No: C5/2007/1119
Neutral Citation Number: [2007] EWCA Civ 982
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No IA/05667/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 23rd August 2007

Before:

LORD JUSTICE SEDLEY

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Between:

DT (JAMAICA)
	
Appellant	
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
	
Respondent	

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Ms N Brisset (instructed by Messrs Doves) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
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Judgment

Lord Justice Sedley:
1.	The applicant, who has been, if I may say so, excellently represented today by Miss Nicola Brisset, is a Jamaican citizen who has lived here since 1989.  He has had indefinite leave to remain because of his marriage to a United Kingdom citizen by whom he has two children, but he no longer lives with them.  His partner since 2005 has been Ms Mensah, with whom he has no children.
2.	The applicant is registered blind and is unable to follow his trade as an electrician or to find other work and so is dependant, while in the United Kingdom, on benefits.  
3.	In September 2004 he was found guilty on two counts of possessing cannabis, a Class C drug, with intent to supply it and was sentenced to two years imprisonment.  In May 2006 the Secretary of State decided to deport him on completion of his sentence.  He appealed, but the appeal was dismissed in September 2006 by Immigration Judge Lawrence.  
4.	Reconsideration was directed by Senior Immigration Judge Freeman, but the AIT’s conclusion on reconsideration was that the initial decision contained no error of law and should stand.  The proposed appeal to this court is, therefore, effectively an appeal against the original decision.  Miss Brisset submits that it was legally flawed and ought to be retaken.  Buxton LJ considered this unarguable because the single ground on which the Senior Immigration Judge ordered reconsideration, namely that the Immigration Judge, near to the end of the determination, had referred inappropriately, since this was a cannabis case, to the spread of HIV/AIDS and to the sharing of needles, was not material to the outcome.  
5.	Miss Brisset’s first ground is that, once reconsideration was ordered, the case was at large and was not limited by any particular reason given by the Senior Immigration judge for ordering it; see AH (Sudan) [2006] UKAIT 00038(41-42).  Without pausing to decide whether this is so, I think it fair to consider the appellant’s grounds in their entirety and to assume in Miss Brisset’s favour that this is what the tribunal was also required to do. 
6.	The first ground is that the Immigration Judge had found deportation to be “required” by the offence before turning to the countervailing factors which might have prevented it.  This seems to me to be a strained argument; if the seriousness of the offending had not reached a deportation threshold under Rule 364, then that would have been the end of the case.  So the Immigration Judge, in my view rightly, considered this first.  He concluded, however, that although it was a first offence, the quantity of cannabis (something under 2 kilos) and the paraphernalia found with it, together with the indication of seriousness given by the two-year sentence, showed criminality of sufficient seriousness to warrant deportation.  So the Immigration Judge turned to the factors contra-indicating deportation.  I can see nothing whatever wrong with such an approach. 
7.	Miss Brisset’s next ground is that in weighing up the pros and cons the Immigration Judge, instead of asking the Rule 364 question, “whether deportation is the right course on the merits”, asked whether there was anything to prevent deportation or “grounds which call his deportation into doubt”.   This, Miss Brisset submits, was an inappropriately narrower test.  Again, I am afraid that I do not agree.  These were perfectly apt questions to determine whether, under Rule 364, deportation was, in the Immigration Judge’s view, the right course.
8.	Next it is submitted that the Immigration Judge, in dealing with Rule 364, overlooked the applicant’s relationship with his two children and his present partner’s children.  It is quite right that there is no reference to them in relation to this rule but they are considered in relation to the closely analogous provisions of Article 8, to which I will turn in a moment.  Before I do so, however, it is worth noting that the relationship of Rule 364 to Article 8 is visible from the terms of the rule itself:
“364. Subject to paragraph 380, while each case will be considered on its merits, where a person is liable to deportation the presumption shall be that the public interest requires deportation. The Secretary of State will consider all relevant factors in considering whether the presumption is outweighed in any particular case, although it will only be in exceptional circumstances that the public interest in deportation will be outweighed in a case where it would not be contrary to the Human Rights Convention and the Convention and Protocol relating to the Status of Refugees to deport. The aim is an exercise of the power of deportation which is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. In the cases detailed in paragraph 363A deportation will normally be the proper course where a person has failed to comply with or has contravened a condition or has remained without authority.”

9.	This was the version of the rule effective from 20 July 2006 and applicable therefore in the present case.  In other words, as can be seen, article 8 underpins the whole exercise and must not in those circumstances, be violated; but even if it is not violated, deportation must also conform to Rule 364.
10.	Miss Brisset submits, in this context, that the Article 8 exercise was also flawed because it failed to consider the exceptional character of the applicant’s case.  Before me, however, Miss Brisset has accepted that that was at a time when it was thought that a case had to be in some way exceptional to come within the protection of Article 8 and since the House of Lords judgment in Huang, it has been known that this is not so.  The single test is proportionality.  
11.	The Immigration Judge speaks in terms neither of exceptionality nor of proportionality, but his final paragraph, having concluded that the applicant has no material parental responsibilities, goes on:
“Even if he does, the crimes of which the appellant has been convicted are such that his removal though an interference … 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”        The appellant was convicted of possession with intent to supply large quantities of cannabis.  Those who consume illicit drugs are given to committing crimes such as burglaries, street muggings and shoplifting to mention a few in order to feed the habit.  Consumption of illicit drugs brings ill-health such as mental illness, evidence is subject to dispute, and more devastating of all AIDS/HIV through shared dirty needles. The removal of the appellant will not prevent crime but also protects health.”

12.	In spite of its unfortunate garbling in a number of places and in spite of an even more unfortunate error to which I will come in a moment, that passage does set out correctly the literal wording of the Article 8 test.  It is the phrase “necessary in a democratic society” which the European Court of Human Rights has translated into the concept of proportionality.  What matters is that the factors capable of making deportation disproportionate and for that reason unnecessary in a democratic society, should be properly marshalled by the decision maker and matched against the gravity of the offending.  That the Immigration Judge has done, having in this context full regard to the family life element of the applicant’s case.  The overlap between Rule 364 and Article 8 is so great in this regard that it is, in my judgment, fanciful to suppose that a different conclusion might have been reached by the Immigration Judge under Rule 364, had he, as he should have done, considered the children under that head.  
13.	There was, on his findings under Article 8, no material impact of deportation on family life in this regard.  I can also find no substance in the complaint developed by Miss Brisset this morning that the finding that Ms Mensah could visit and even live with the applicant in Jamaica overlooks her evidence that she cannot do so.  What matters for this purpose is the finding in paragraph 4.7 of the determination:
“4.7  Ms Mensah told me that the appellant cannot shave very well because he cannot see well enough for that. She told me that the appellant has his own flat at 5 Henderson Road, ‘He lives there.  But sometimes he spends time with me.  Thomas likes to entertain people in his own house.  He likes to cook and entertain his friends…..He entertains his friends with bar-b-que’.  Ms Charlene Walker’s, the appellant’s step-daughter, evidence is similar.”

14.	Again, this decision could have been better organised but I do think that the material and the elements are there to answer Miss Brisset’s complaint.  What this leaves is the unfortunate reference to the effects of sharing dirty needles.  This was undoubtedly a finding too far. It has no bearing on cannabis use, which is of course one reason why cannabis is only a Class C drug.  In so far as it is meant to suggest that cannabis use can lead to the use of harder drugs, it is too indirect and exiguous to be a serious factor; but the passage comes at the end of a determination which has already reached a conclusion adverse to the applicant. It includes the undoubtedly relevant additional consideration that all drug habits are productive of crimes against person and property. In common with the Immigration Judge who conducted the reconsideration and Buxton LJ, it seems to me that this parting shot, while badly wide of the mark -- Miss Brisset is undoubtedly right about that -- does not vitiate the concluded reasoning which has preceded it.  Putting it another way: if it were not there -- and it should not have been there -- there can be no doubt that the decision would have been the same.
15.	It is, I agree, a harsh decision in all the circumstances.  I make no secret of the fact that if I had been taking it I very much doubt whether it is the decision I would have arrived at, and if it had gone the other way the Secretary of State could certainly not have complained that it was perverse.  But neither of these is the question to this court.  The question is whether there is arguably a legal flaw in the decision and, despite the excellent efforts of Miss Brisset to demonstrate one, I am afraid that I can see none.  It gives me no pleasure to reach this conclusion, but to give Mr T permission to appeal would only falsely raise his hopes since an appeal would be bound to fail.  For the reasons I have given, therefore, I refuse permission to appeal.
Order: Application refused.