Case No: C5/2007/2341
Neutral Citation Number: [2008] EWCA Civ 80
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/06784/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 21st January 2008

Before:

LORD JUSTICE CARNWATH
and
LORD JUSTICE THOMAS
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Between:

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

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Mr P Sani (instructed by Doves Solicitors) appeared on behalf of the Appellant.

THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Carnwath:

1.	This is a renewed application for permission to appeal against a decision of the AIT.  It has quite a long history but I can deal with it shortly for the purposes of permission.

2.	The applicant was born in Jamaica in 1975 and came to this country in 1997 as a visitor with a visa to remain as a student.  In July 2000 he married a British citizen and initially had leave to remain as a spouse until November 2001.  Then unfortunately things took a different course.  He was involved in a very unfortunate incident which resulted in the death of a person who had been involved with his wife and was indeed the father of his stepson.  He was arrested in June 2001 and was convicted of murder in March 2002. That conviction was eventually quashed and, following a new trial, he was convicted of manslaughter and subject to a six year sentence.   He was released in June 2005; so the result was that in his time in this country he had spent almost four years in prison.  

3.	In the meantime he had applied for continuing leave to remain; that had been refused, and in due course the Secretary of State served on him a notice of decision to deport on public interest grounds.  That was subject to an appeal and that is the issue which has come before us.

4.	There was a hearing of his appeal before Immigration Judge Simpson and a non-legal member, Mr Smith, in February 2007.  The applicant and his wife both gave evidence and there were letters in support from relations.  The tribunal reviewed the issues.  In cases such as this there are parallel questions under the Immigration Rules Rule 364 and under Article 8 of the   Human Rights Convention, Protection for Family Life.  The immigration judge at that stage appeared to have taken the view that the Article 8 hurdle was a higher one since it involved a decision based on Wednesbury principles rather than the broader discretion under the Rules. I am not sure was right even then but it certainly is not right now.  It has been established that under Article 8 the immigration tribunal has to make its own judgment. 

5.	However that may be, the important point is that the tribunal went through all the circumstances. They emphasised that the evidence was that he had been a hard working and responsible person generally, that his marriage was solid and that he had integrated into the new family, and that his connections are all in this country and not in Jamaica.  There was also a question about his wife’s health: she was diabetic and was pregnant and there were concerns about the potential risks to her and the child if they had to go to Jamaica with him.  

6.	The tribunal rightly identified the strong point the other way of his conviction for manslaughter.  They reviewed that with some care but took account of the fact that it appeared to be a completely one-off incident, as the judge had accepted, and that the risk of re‑offending was low.  So they on balance decided in his favour.

7.	The Secretary of State appealed on the grounds principally that the immigration tribunal had given insufficient weight to the importance of the policy in respect of serious offences.  The Department relied on a decision of the court in M (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094:

“The risk of re‑offending is a factor in the balance, but for very serious crimes, a low risk of a re‑offending is not the most important public interest factor.”

It was submitted that insufficient regard had been paid to that guidance.

8.	SIJ Lane in March 2007 ordered reconsideration, principally on that ground; he said:

“The last sentence of paragraph 12(F) of the determination reveals a very arguable error of law, as identified in N (Kenya) v Secretary of State for the Home Department [2004] EWCA Civ 1094.  Irrespective of the risk of re‑offending, the Secretary of State is entitled to give effect to the public interest in securing the removal from the United Kingdom of foreign killers.”

The last sentence of paragraph 12 F to which he refers says:

“This court [I assume this tribunal] … concludes that there is a very low risk of future offending and therefore little to protect the public from by deporting the Appellant.”

9.	As I understand it, SIJ Lane was not ruling definitively that it was an error of law but simply at that stage ordering reconsideration on the basis that there was an arguable error of law.

10.	The matter then came before SIJ Gleeson.  She did not hear any new evidence but she heard submissions on the part of both parties.  In August 2007 she gave her decision reversing the earlier decision.  Reading her decision it is not wholly clear to me whether she understood it to be common ground that there was an error of law in the first decision, or whether she was making a decision to that effect herself.  But in any event she reviewed the matter under Article 8 as being in her view the primary issue but also under Rule 364. In doing so  she  reassessed most of the facts.  She regarded the marriage relationship as a relatively limited factor; she referred to it as being new; she had some doubts as to whether in fact it engaged Article 8 at all because as she said:

“The appellant has not spent much time in this marriage since he has been mostly in prison.”

She took the view that a man who has killed once on such slender grounds as this may do so again. Her overall view was that the decision of the Secretary of State had been justified.

11.	Mr Sani who appears today says that there was an arguable error on two grounds.  First it was arguable that the first decision was not erroneous in law.  The tribunal had not ignored the considerations raised by N (Kenya) but had simply decided that on the balance of other facts they did not justify the Secretary of State’s decision; that was a question of judgment.  Secondly he says that SIJ Gleeson was not entitled to reopen the factual decisions, made by the first tribunal which had heard the evidence, in the way she did. 

12.	I It seems to me that both those points are realistically arguable and sufficient for us to grant permission.  I say no more about the merits but I would suggest that Mr Sani might like to consider amending the grounds so as to highlight those two points.  We have had the benefit of various different versions of the case.  I think it would be helpful for the court that hears this appeal to have a succinct and specific delineation of those two grounds, which are the only ones on which I propose to grant permission.

Lord Justice Thomas: 

13.	I agree.

Order: Application granted.