Case No: C5/2010/0254
Neutral Citation Number: [2010] EWCA Civ 1008
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/15797/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 27th July 2010

Before:

LORD JUSTICE SEDLEY

- - - - - - - - - - - - - - - - - - - - -

	WM (Afghanistan) 	
Appellant 	
	- and -		
	
SECRETARY OF STATE FOR THE
HOME DEPARTMENT	

Respondent	

- - - - - - - - - - - - - - - - - - - - -

(DAR Transcript of 
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

- - - - - - - - - - - - - - - - - - - - -

Mr David Chirico (instructed by the Immigration Advisory Service) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

- - - - - - - - - - - - - - - - - - - - -
Judgment
Lord Justice Sedley:  

1.	This is a renewed application made by Mr David Chirico on behalf of an Afghan national who is settled in this country.  He is the spouse of a British citizen but has twice committed quite serious sexual offences, once against an underage girl and once against an adult woman who was a stranger, in both cases under the influence of drink, to which he was prone.  His case that he had turned his back on drink was doubted by the AIT on good grounds, and the fact that when under the influence of drink he is a compulsive offender against women is a very serious risk factor with which any tribunal judging this case has to contend.

2.	If this were all, there would be no answer to the proposal to deport him.  But he and his wife have two young children, and there was a good deal of evidence to support the proposition that the children need and benefit by his presence, albeit it is a presence which continues to be under the strict supervision of the local authority because the applicant is now rightly on the sex offenders register and is disqualified from working with children.  All one can say about the family relationship is that in that very strained context it appears to have survived, to be to the children’s benefit and to be capable with luck and supervision of continuing.

3.	The AIT’s judgment is a thorough and conscientious one, beyond reproach in most respects.  Longmore LJ, considering this application on the papers, granted an extension of time, so that that is now dealt with, but wrote:

“No doubt the decision of the Tribunal was a difficult and finely balanced one, but they approached the matter correctly and I cannot see that they have committed any error of law.”

4.	The grounds before Longmore LJ, not drafted by Mr Chirico, were at that stage a root-and-branch assault upon the decision, concluding with the proposition that: 

“…the Panel erred in law in finding that the decision to deport was proportionate.”

It was in short a perversity challenge and on that footing it was doomed to failure.

5.	Mr Chirico, taking the case over, has adopted a subtler and more nuanced approach and has advanced in his advocate’s statement from paragraphs 10 onward two grounds which are closely reasoned and appear to me to be viable in this sense: that if either or both of them is made out, it will not mean that there should be no deportation but it may mean that the decision, which was arguably finely balanced, could have gone the other way had the Tribunal got right what Mr Chirico submits they got wrong.

6.	The two things he submits they got wrong are, firstly, placing reliance upon telephone and email communication with the children from Afghanistan, with a possibility of meeting in a neutral third country from time to time; and secondly, the material concerning risk of reoffending.  

7.	As to the first of these, it is the case that the Tribunal dealt discretely in their findings with the possibility of communication from abroad but in their concluding paragraph wrote this: 

“68. Having weighed all these factors into account both for and against the Appellant we have decided that the decision of the Respondent to make a deportation order in this matter was proportionate weighing the Appellant’s interests against the requirements of public safety in the prevention of disorder or crime.  We realize that our decision will have a severe impact on the Appellant’s wife, children and mother-in-law but we found that the Appellant will be able to maintain contact with those persons either through modern methods of communication or more old fashioned letters ... it did not seem to us to be unreasonable to think that it will be possible for the interested parties to meet in a neutral country.”

8.	If that concluding paragraph had ended with the first sentence, I do not think Mr Chirico would have an argument.  But it seems to me arguable, contrary to what Longmore LJ took to be the case, that the second sentence and the final sentence are not merely add-ons or throwaway findings but part of the proportionality decision.  If they are, then it is arguable that these factors not only would not mitigate the parting of children old enough to be aware of the loss of their father from the applicant, but would aggravate the sense of loss, and certainly would not mitigate it.  In other words it is arguable that the Tribunal are treating as a mitigating factor under Article 8(2), against the severe impact of separation, something that is not a mitigating factor at all.

9.	The second matter is the specific possibility of error in the Tribunal’s identification and consequent appraisal of psychological reports which, if accepted, are capable of mitigating the undoubtedly sharp risk of reoffending on this applicant’s part.  It is well set out in the advocate’s statement and there is no need for me to repeat it; it is, in my judgment, arguable.

10.	These, singly or together, seem to me to be factors that, if made out, are capable of upsetting the balance arrived at by the AIT, and for that reason are suitable for the grant of permission to appeal, which Mr Chirico accordingly has, on the grounds I have indicated.

Order:  Application granted.