M v Secretary of State for the Home Department

A reasoned merits decision by a criminal court not to recommend deportation is a relevant consideration in a later decision under section 3(5)(a) of the Immigration Act 1971. It creates no presumption that the Secretary of State must follow the criminal court, and no new evidence is required before he may disagree. He must nevertheless engage with the criminal court’s reasoning and explain the disagreement briefly. The Secretary and appellate authorities may consider wider country and policy matters, while recognising the criminal court’s expertise on offence gravity and sentencing. European Union free-movement restrictions do not extend to a person exercising no European Union rights.

M, a Bangladeshi citizen settled in the United Kingdom with his British wife and children, was convicted of three indecent assaults and imprisoned. The Court of Appeal (Criminal Division) later quashed the trial judge’s recommendation for deportation on proportionality grounds, while leaving the sentence unchanged.

The Secretary of State subsequently made a separate deportation decision under section 3(5)(a) of the Immigration Act 1971. An Adjudicator dismissed M’s appeal, and the Immigration Appeal Tribunal dismissed his further appeal on 25 June 2002. The central issue was whether the Secretary of State and the appellate authorities had properly addressed the criminal court’s reasoned decision. M also renewed an application for permission to argue that European Union restrictions should apply despite his having no European Union rights.

Lord Justice Laws gave the leading judgment. Lord Justices Jonathan Parker and Ward agreed.

1. Main appeal allowed. The Immigration Appeal Tribunal’s determination could not stand because neither the Secretary of State nor the appellate authorities properly engaged with the criminal court’s reasoned decision to quash the deportation recommendation.
2. A merits-based refusal or quashing of a deportation recommendation is relevant when the Secretary of State later considers the separate power under section 3(5)(a) of the Immigration Act 1971. The Secretary must consider the criminal court’s reasoning and explain, however briefly, why he agrees or disagrees with it. The same obligation applies to appellate authorities reviewing the decision.
3. No presumption arises in favour of the criminal court’s refusal to recommend deportation. The Secretary of State may reach a different view without new facts or different considerations. Section 3(5)(a) creates a free-standing executive power, distinct from the power to act on a court’s recommendation under section 3(6) and section 6(1).
4. The functions overlap but are not identical. The criminal court is particularly well placed to assess the gravity of the offence and sentencing policy. The Secretary of State is better placed to assess destination-country conditions and wider policy effects, including deterrence. Those broader responsibilities do not remove the duty to confront the criminal court’s merits conclusion. Authorities including Nazari (1980) 2 Cr App R (S) 84, Ali Dinc [1999] INLR 256, Samaroo [2001] EWCA Civ 1139, Al-Sabah [1992] IAR 223 and Hukam Saib were applied for these distinctions.
5. The Explanatory Statement did not explain the Secretary of State’s view of the criminal court’s decision. The Adjudicator referred to it without explaining its significance, and the Tribunal treated it as irrelevant to the section 3(5)(a) decision.
6. The renewed European Union law ground was rejected. Restrictions arising from European Union free-movement rights apply where such rights are being exercised. There was no basis for imposing the same standard on a person exercising no European Union rights. The renewed application for permission to appeal was dismissed.

1. Court of Appeal (Civil Division) — On 19 February 2003, the court allowed M’s appeal from the Immigration Appeal Tribunal and dismissed the renewed application for permission to appeal: [2003] EWCA Civ 146.
2. Immigration Appeal Tribunal — On 25 June 2002, the Tribunal dismissed M’s appeal against the Adjudicator’s determination.
3. Adjudicator — Dismissed M’s appeal against the Secretary of State’s decision to deport him under section 3(5)(a) of the Immigration Act 1971.