M v Secretary of State for the Home Department

The Court of Appeal allowed the appellant's challenge to the IAT determination because neither the Secretary of State nor the appeal bodies had properly engaged with the reasoned decision of the Court of Appeal Criminal Division (CACD) which had quashed the trial judge's recommendation for deportation. The court held that where a criminal court on the merits gives reasoned grounds for refusing to recommend deportation under section 3(6) of the Immigration Act 1971, the Secretary of State must take that prior reasoning into account and, if he disagrees when exercising his separate power under s.3(5)(a), must explain briefly why he does so. There is no presumption that the Secretary of State must follow the criminal court's conclusion when deciding under s.3(5)(a), but the criminal court's judgment is a relevant consideration requiring engagement. The court dismissed the renewed application on the European Union law point and confirmed that EU free-movement principles apply only where EU rights are engaged.

Background and parties. The appellant, a Bangladeshi national granted leave to enter as an imam and later indefinite leave to remain, was convicted of indecent assaults on two girls and sentenced to imprisonment. The trial judge recommended deportation; on appeal the Court of Appeal (Criminal Division) quashed that recommendation but confirmed sentence. The Secretary of State later decided to deport under s.3(5)(a) of the Immigration Act 1971. The Adjudicator and then the Immigration Appeal Tribunal dismissed the appellant's appeals against deportation. The appellant appealed to the Court of Appeal seeking review of the IAT decision.

Nature of the application and issues.

• The appellant sought to challenge the IAT's dismissal of his appeal against deportation under s.3(5)(a).
• The principal legal issue was whether, and to what effect, the CACD's reasoned quashing of a first-instance recommendation to deport must be treated by the Secretary of State and by appellate decision-makers when later considering deportation under s.3(5)(a).
• Secondary issues included whether the Adjudicator and IAT had treated their functions as a review rather than an appeal on the merits, and whether EU law principles applicable to persons with free-movement or settlement rights should be extended to those without such rights. Permission to appeal was granted on the CACD issue alone; a renewed EU law permission was refused.

Facts relevant to decision. The CACD found the recommendation for deportation disproportionate in the light of the appellant's character, anonymity consequences on release, and hardship to his family, and quashed the recommendation. The Secretary of State's Explanatory Statement and the Adjudicator's and IAT's decisions referred to the CACD judgment but did not explain what they made of its reasoning.

Court's reasoning and holdings. The Court of Appeal held that the functions of the criminal court under s.6(1) and of the Secretary of State under s.3(5)(a) are distinct: criminal courts lack the specialist, wide-ranging policy information available to the Secretary of State, and therefore their remit differs. That distinction, however, does not absolve the Secretary of State of the duty of fairness and good administration to engage with a prior reasoned criminal judgment refusing a recommendation for deportation. Where the criminal court has given reasons on the merits, the Secretary of State must consider those reasons and, if he decides differently under s.3(5)(a), state briefly why he reaches a different conclusion. The court found no automatic presumption that the Secretary of State must follow the criminal court; but it required an explanation where views diverge. Because the Secretary of State, the Adjudicator and the IAT did not engage with the CACD's reasoning in the present case, the IAT decision could not stand and the appeal was allowed. The Court refused permission on the renewed EU-law argument: EU free-movement principles apply only where EU rights are in issue.

Relief. The Court allowed the appeal and indicated that the appellant's statutory appeal should be reheard, likely by a differently constituted IAT.

Appeal allowed. The Court held that although there is no presumption that the Secretary of State must follow a criminal court's reasoned decision not to recommend deportation, the Secretary of State must consider that decision and give a brief explanation if he disagrees when exercising the separate power under s.3(5)(a) of the Immigration Act 1971. The IAT decision failed to engage with the CACD reasoning and therefore could not stand. The renewed EU law permission was refused because EU free-movement principles apply only where EU rights are engaged.

Appeal from the Immigration Appeal Tribunal (IAT determination dated 25 June 2002). Permission to appeal granted by Buxton LJ (5 September 2002) on one ground. Heard in the Court of Appeal (Civil Division) and judgment given 19 February 2003 ([2003] EWCA Civ 146). The CACD had earlier (6 February 2001) quashed the trial judge's recommendation for deportation.