Application For Permission To Appeal Under Section 103(b) Of The Nationality, Immigration And Asylum Act 2002 By A V. A Determination Of The Asylum And Immigration Tribunal Dated 2 August 2007
| Jurisdiction | Scotland |
| Judge | Lord Kingarth |
| Neutral Citation | [2008] CSIH 59 |
| Court | Court of Session |
| Docket Number | XA133/07 |
| Date | 18 November 2008 |
| Published date | 18 November 2008 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Kingarth Lord Carloway Lord Marnoch | [2008] CSIH 59 XA133/07 OPINION OF THE COURT delivered by LORD KINGARTH in APPLICATION FOR PERMISSION TO APPEAL UNDER SECTION 103(B) OF THE NATIONALITY, IMMIGRATION AND ASYLUM ACT 2002 By A Applicant; against A determination of the Asylum and Immigration Tribunal dated 2 August 2007 _______ |
Act: Bovey, Q.C., Devlin; Drummond Miller
Alt: Carmichael; Office of the Solicitor to the Advocate General
18 November 2008
[1] This is an application for permission to appeal against a determination of the Asylum and Immigration Tribunal ("the Tribunal") dated 17 July 2007.
[2] In that determination - which followed a reconsideration of the applicant's appeal, on human rights grounds, against a decision of the Secretary of State to order his deportation to Jamaica - the Tribunal affirmed an earlier decision of the Immigration Appeal Tribunal to refuse the applicant's appeal. Permission to appeal to this Court was refused by the Tribunal on 2 August 2007. It was agreed before us that if the Court was minded to grant permission it could also proceed to determine the appeal.
[3] In its determination the Tribunal, for a number of reasons expressed at length, rejected contentions that deportation of the applicant would be in breach of his rights under Articles 2 and 3 of the Human Rights Convention, and in breach of his rights under Article 8 relating to his family life with S, his wife. As to the latter, the Tribunal found that insofar as S indicated that she would not follow the applicant to Jamaica if he was deported, partly because of difficulties in keeping up with her own family and partly because of what she thought would be encountered there, this was her own choice. It is not sought to challenge the determination in these respects. It was, however, also determined that deportation would not be in breach of the rights of the applicant, and of his children T and U, in relation to his family life with them. It is this part of the determination which is challenged before this Court.
[4] So far as the relevant background is concerned the Tribunal proceeded on the basis that the applicant came to the United Kingdom in 1991, aged 25. He had a visitor's visa. His sponsor was F, whom he had met in his own country. A and F married in July 1991. H was born in July 1992. In the summer of 1993 A was granted indefinite leave to remain in the United Kingdom as F's husband. A couple of years later, A and F separated. In 1996 A was convicted of a number of offences of indecent assault and gross indecency. The victim of these assaults was G (F's daughter by a previous relationship), and the feature of the offences was that he was in a position of trust towards her, as he was looking after her. Although the judge was able to find some mitigation, A was sentenced to a term of imprisonment for 51/2 years. He was released from custody in 1998, by which time he had also been divorced from F. Thereafter the Secretary of State made the decision to deport the applicant as someone whose presence in the United Kingdom was not conducive to the public good. A and S met in the spring or early summer of 1999. By early 2000, S was pregnant, and T was born in October 2000. U was born a little over 2 years later. S is white and T and U are of mixed race. A and S married in May 2000. For the most part thereafter they have lived together in family, latterly at a house in Dumbarton.
[5] On 10 January 2006 an incident occurred. The Tribunal in particular record:
"39. ......On that day some young men who had been drinking with one of their (older) neighbours took it into their heads to damage the parties' car and the CCTV camera which was permanently trained on the outside of their house. S went out to record what happened on her cam-corder at which the vandals threw eggs and abuse, racialist and otherwise, at her and the appellant. The police were called, and eventually arrested five young men: one was kept in custody for some time, apparently because he had assaulted an officer. Criminal proceedings followed, which resulted in some of them being admonished.
40. The most serious consequence of this incident for the parties was that S and the children were taken away to a refuge at Clydebank by an officer of the police sex offenders unit, who apparently indicated that the only alternative was for the children to be take into care. The police were concerned for the children's safety, on the basis that the house might be fire-bombed. In the course of the hearing, Mr Bovey produced the report of a local authority child protection conference on 9 February 2006, expressing a hope (whether on the part of the writer or the parties is not immediately clear; but we shall return to this) that the family could be re-united. The appellant continued to see the others every day, either at Dumbarton or at Clydebank.
41. In April 2006 the social services department wanted to move S and the children back to Dumbarton; but the police would not agree that they would be safe there, and S did not want to risk being moved out again in a hurry, so they stayed at Clydebank. It was not clear from S's evidence whether the appellant went on seeing the children at that point; but another case conference on 7 May 2006 decided that he should have only supervised contact with them, and this went on till another incident in June, when he and she were attacked by persons unknown to them in a park in Dumbarton. Evidently they reported this to the police: while the social services department at first gave the parties to understand that the incident would make no difference to the contact arrangements, the next week even supervised contact was stopped for the time being".
[6] Thereafter, it was found that abortive attempts to resume supervised contact were made until the applicant was detained under immigration powers, following what, he said, was a misunderstanding by him of what a police officer had said to him about his reporting requirements. He was released from detention in May 2007. In the six weeks or so thereafter before the hearing of the Tribunal, supervised contact was acceptable to the social work department but only on the basis that it would take place within the departmental office in Clydebank, albeit the department was trying to arrange for this to take place elsewhere, for example, at a park, activity centre or zoo. As to why any contact was then to be supervised the Tribunal record (at paragraph 43) the evidence of S (who at all times has willingly maintained contact with the applicant) that contact had to start somewhere after the period during which there had been no contact. They also record that the applicant's most recent statement "sheds no further light on this, other than to say that his solicitor ....is trying to get to the bottom of it".
[7] Two risk assessments relating to the applicant were before the Tribunal, dated in 2000 and 2001 respectively, the latter being one prepared by Mr James McCahon, social worker. The details of both and the conclusions of the authors are summarised by the Tribunal at paragraphs 52 to 55 of the determination. It is enough for present purposes to note that both assessments were to the effect that the applicant did not then present a significant risk of reoffending, although it was acknowledged in both that insofar as circumstances changed, so could the assessment of the risk he could be said to pose. Although it appears the appellant committed no further offences after 1996 and followed a sex offender's treatment programme from 1998 to 2000 when he moved to Scotland with S, he voluntarily registered himself with the authorities in Scotland as a sex offender when he moved. The children were placed on the "at risk" register, but it was S's evidence (as recorded at...
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