Immigration

Human rights – Convictions – Deportation

JO (Uganda) v Secretary of State for the Home Department: JT (Ivory Coast) v Secretary of State for the Home Department: CA (Civ Div) (Lords Justice Mummery, Richards, Toulson): 22 January 2010

The first appellant (J) appealed against a deportation order to Uganda and the second appellant (T) appealed against the refusal of his asylum claim and his consequent future removal to the Ivory Coast.

J was born in Uganda in 1982 and moved to the UK when he was four years old. He was granted indefinite leave to remain in 1995. In 2002 he was convicted of a number of counts of possession of class A drugs with intent to supply and of possessing a prohibited weapon. He was convicted in 2005 of possession of a firearm and prohibited ammunition. A deportation order was made against him in 2008 under section 3(5) of the Immigration Act 1971. His appeal against that order was dismissed. T was born in the Ivory Coast in 1990 and he moved to the UK in around 1995. He committed a number of criminal offences from the age of 15. He was arrested in 2008 for having entered the UK illegally. His application for indefinite leave to remain was refused and his subsequent application for asylum was refused. On appeal the Asylum and Immigration Tribunal (AIT) had limited information before it on T’s criminal history. The AIT distinguished the case of Maslov v Austria (1638/03) [2009] INLR 47 ECHR (Grand Chamber) on the basis that T’s presence in the country was unlawful and his appeal was dismissed. J submitted that the tribunal failed to properly consider the point of the European case law concerning the special situation of those who had come to a host country as young children and failed to give proper consideration to his private life.

Held: (1) European case law made clear that in considering whether deportation, on grounds of criminal offending, of aliens who were otherwise lawfully present in the host country, was proportionate to the legitimate aim of the prevention of disorder or crime, it was necessary to examine both private and family life, Boultif v Switzerland (54273/00) [2001] 2 FLR 1228 ECHR, Uner v Netherlands (46410/99) [2006] 3 FCR 340 ECHR (Grand Chamber) and Maslov applied. A balance was to be struck under article 8 of the European Convention on Human Rights 1950 with a proper appreciation of the special situation of those who had been in the host country since childhood. The age of offending was also relevant in the analysis. All such cases were highly fact-sensitive. Cases of removal operated within the same legal framework as deportation. The material difference was that they involved the pursuit of different legitimate aims: it was the prevention of disorder or crime in deportation cases and the maintenance of effective immigration control in ordinary removal cases. The difference in aim was potentially important because the factors in favour of expulsion were capable of carrying greater weight in deportation cases because the protection of society was more important than immigration control.

(2) In J’s case, the tribunal had found that his family life in the UK was tenuous and marginal and he was a young single man with no partner or children. He had been assessed as posing a medium risk of causing serious harm to the public. The tribunal had only dealt with J’s private life cursorily. However, looking at the determination as a whole, the tribunal had directed itself correctly and there was no material error of law. J’s appeal was dismissed.

(3) In T’s case, by distinguishing Maslov on the basis that T’s presence in the country was unlawful, the AIT seemed to have disregarded Maslov as entirely irrelevant to T’s case. That was not a proper basis for disregarding what was said in Maslov about those who had moved to the host country as young children or about the significance of the age at which the criminal offences were committed. Moreover, the information available to the AIT about T’s offending was very limited and of doubtful accuracy. Accordingly, the AIT’s determination was flawed by material errors of law and the case was remitted for further reconsideration.

Appeals allowed in part.

Richard Drabble QC, Graham Denholm (instructed by Hackney Community Law Centre) for the first appellant; Richard Drabble QC, Linda Appiah (instructed by Charles Annon & Co) for the second appellant; John-Paul Waite (instructed by Treasury Solicitor) for the respondent.