AF (Jamaica) v Secretary of State for the Home Department
|England & Wales
|Lord Justice Rix,Lord Justice Toulson,Lord Justice Rimer
|26 March 2009
| EWCA Civ 240
|Court of Appeal (Civil Division)
|Case No: C5/2008/0004
|26 March 2009
 EWCA Civ 240
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
HIS HONOR JUDGE GOLDFARB
Lord Justice Rix
Lord Justice Toulson and
Lord Justice Rimer
Case No: C5/2008/0004
Miss S Naik (instructed by Messrs Dexter Montague & Partners) for the Appellant
Mr Robert Kellar (instructed by Treasury Solicitors) for the Respondent
Hearing date: Thursday 4th December 2008
th, 9th, 15th, 16th and 17th December 2008Lord Justice Rix
Lord Justice Rix:
The appellant, AF, is a citizen of Jamaica, born on 29 November 1978, who arrived in the UK on 9 December 1998, when he was 20, with leave to enter as a visitor. He subsequently applied, in time, for an extension of leave to remain as a student, an application which was never dealt with. On 11 August 1999 he married S, a British citizen, and on 4 October 1999 applied instead to vary his application for leave to remain as a student to one for leave to remain as a spouse. That latter application was not dealt with until it was refused on 9 November 2005 in circumstances recited below. It is said, and it has not been seriously challenged by the respondent, that it follows that his immigration status was not in default while he was awaiting the answer to his application. 1
In the meantime, on 12 September 2000, a son was born to the married couple. AF also had a daughter from a previous relationship, who was born in England on 10 February 2000 and has lived with her mother here.
On 12 November 2000 AF witnessed the killing of his cousin, JB, by a member of a Jamaican criminal gang, Michael Porter. He was abducted and threatened, and entered into a police witness protection programme. He gave evidence at Porter's trial. Another witness, Stephen Williamson, together with his son, were murdered in Jamaica. Porter was acquitted in 2001 of the murder of JB but found guilty of a separate serious offence and sentenced to 18 years in prison.
On 7 June 2001 AF was himself arrested on suspicion of supplying class A drugs and held on remand. On 26 November 2001 he was convicted of conspiracy to supply class A drugs (heroin and cocaine) and sentenced to a term of 7 years imprisonment. He was not recommended for deportation. However, on 30 September 2004 notice of intention to deport was served on him, in the light of his conviction, and on the same day he applied for asylum. He was released from prison on 11 October 2005.
On 9 November 2005 the Secretary of State for the Home Department who is respondent to this appeal (the “Secretary of State”) refused AF's asylum application and also his long extant application for leave to remain as a spouse. His asylum application referred to a claim for humanitarian protection and articles 2 and 3 of the ECHR, on the basis that he would be in danger of mistreatment or
death from criminal gangs in Jamaica. Consideration was also given to article 8 of the ECHR. It was considered that AF would not be at real risk of a breach of article 3 in Jamaica, in as much as he would be able to access sufficient protection or else relocate to a place of safety. The reasons for refusal letter stated inter alia that –
“43. Consideration has also been given to whether your family life might be disrupted if you were removed from the UK, and to whether this would cause a breach of Article 8 of the ECHR. It is noted that you are married to a British citizen and that you have a five-year-old son together. You married this woman on 11 August 1999, two months after the expiry of your visitor's visa. All your representations have been carefully considered, but although your wife is a British citizen it is considered that the fact that shortly after your marriage you applied for an extension to stay in the UK as her spouse demonstrates that when you embarked on this relationship you both knew that you might be required to leave the United Kingdom. Both your son and wife may apply to settle with you in Jamaica or to accompany you to that country while you apply for entry clearance to re-enter the United Kingdom from Jamaica for settlement as a spouse…
46. Additionally, after taking into account your seven-year conviction for conspiracy to supply cocaine and Heroin any interference with your family life caused by your removal to Jamaica is in your case outweighed by the public interest and that your removal is both justified and proportionate in pursuit of these aims under Article 8(2). Therefore you do not qualify for Discretionary Leave.”
On 8 December 2006 the Secretary of State issued her decision to make a deportation order in the case of AF. Her letter of the same date giving her Reasons for Deportation referred to her policy DP 3/96 relating to marriage applications, but wrongly stated that it did not apply because the marriage had not pre-dated the notice of intention to deport by the necessary two years (in fact the marriage had pre-dated that notice by a few days short of five years). As for article 8, the letter stated:
“…your case has been considered in light of the findings of the Court of Appeal in the case of …It is concluded that in light of your criminal offence your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals…Furthermore, no reason can be found why your wife and child would not be able to accompany you to Jamaica should they wish to do so. Your child is considered young enough to adapt to life abroad…”
On 3 January 2006 AF lodged his appeal against the Secretary of State's two decisions. On 14 March 2006 AF's appeal was heard and on 21 March 2006 the AIT determination rejecting that appeal was published. Grounds for reconsideration were lodged. On 5 March 2007 the AIT found an error of law and on 10 September 2007 the second stage reconsideration was heard by Immigration Judge Goldfarb. She promulgated her determination on 28 September 2007, dismissing AF's appeal, which had been argued under articles 2, 3 and 8 of the ECHR and under Rule 364 of the Immigration Rules. That is the determination under appeal here. Permission to appeal to this court was granted by Moses LJ upon renewal of AF's application.
The grounds of appeal complained of error in IJ Goldfarb's dealing with both article 3 and article 8: but in oral submissions Ms Sonali Naik on behalf of AF confined herself to article 8, with particular reference to the position of AF's wife and children and to the Secretary of State's policies DP 3/96 and DP 5/96 which relate to marriage and children with long residence respectively. In the meantime AF and his wife had had another child, a daughter, born on 10 October 2006.
The article 8 jurisprudence
It is well known that there have been two major decisions from the House of Lords in recent years concerning the application of article 8. In article 8 decision was for the appellate immigration authority itself, investigating the facts on an up-to-date basis, and was not a mere review of the rationality and legality of the primary decision-maker; and secondly, that in assessing the proportionality of its decision for the purposes of article 8(2), the test was expressed as follows:, , it was held, first, that the
“20. In an article 8 case where this question is reached, the ultimate question for the appellate authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of the considerations weighing in favour of refusal, prejudices the life of the family of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.”
In , , the House of Lords further held that for these purposes what had to be considered was the family life of the family unit as a whole, and not merely the impact that the decision would have on the appellant by himself or herself. Each member of the family unit was to be regarded as a victim. That decision settled an issue which had arisen in immigration and asylum jurisprudence in previous years and which prior to the decision in the House of Lords had been resolved on balance in the more restricted view of the question. At para 41, Lord Brown of Eaton-under-Heywood contemplated that it would no doubt be “only infrequently” that the issue would affect the outcome of an appeal, but “clearly on occasion it will”.
The Netherlands in a passage itself cited by Lord Brown in at para 38 (“Having regard to its finding…that the second applicant and the children cannot be expected to follow the first applicant to Turkey”).... suggests that for these purposes one of the guiding principles is whether the family life “cannot reasonably be expected to be enjoyed elsewhere” (see at para 20 cited above) and that appears to be confirmed by recent Strasbourg jurisprudence: see
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