Cadonius De-Havalan Lowe v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice McCombe,Lady Justice Asplin,Lord Justice Phillips |
| Judgment Date | 25 January 2021 |
| Neutral Citation | [2021] EWCA Civ 62 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2019/1865 |
[2021] EWCA Civ 62
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE PERKINS
HU/16801/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McCombe
Lady Justice Asplin
and
Lord Justice Phillips
Case No: C5/2019/1865
Barnabas Lams (instructed by TNA Solicitors) for the Appellant
Marcus Pilgerstorfer QC (instructed by the Government Legal Department) for the Respondent
Hearing date: 10 December 2020
Approved Judgment
Introduction
This is the appeal of Mr Cadonius Lowe (“the Appellant”) from the decision of 10 April 2019 of the Upper Tribunal (Immigration and Asylum Chamber) (“UT”) (UT Judge Perkins) allowing the appeal of the Secretary of State for the Home Department (“the Respondent”) from a decision of 17 December 2018 of the First-tier Tribunal (Immigration and Asylum Chamber) (“FTT”) (FTT Judge G Wilson). The FTT had allowed the Appellant's appeal from the decision of 1 August 2018 of the Respondent refusing the Appellant's human rights claim, raised in resistance to a deportation order made against him on 30 October 2017. The Appellant now brings this second appeal to this court pursuant to permission granted by Holroyde LJ by his order of 4 December 2019.
In his order, the learned Lord Justice expressed his reasons for granting permission to appeal as follows:
“It is arguable that the UT was wrong to find that the decision of the FTT was irrational, and wrongly substituted its own assessment of whether there were “very significant obstacles” to integration in Jamaica.
The second appeal test is satisfied because the seriousness of the consequences of the decision of the UT (acknowledged by the UTJ as amounting to “exile rather than deportation”) provides a compelling reason why an appeal should be heard.”
Having carefully considered the helpful arguments of Mr Lams for the Appellant and of Mr Pilgerstorfer QC for the Respondent, I find that the UT was indeed wrong to hold that the decision of the FTT was irrational and that it was also wrong in substituting its own assessment of whether there were “very significant obstacles” to the Appellant's integration into Jamaica after deportation for that of the FTT. Indeed, because the UT correctly determined that this was a case of exile rather than deportation, it expressed succinctly in summary form the basis for the underlying very significant obstacles to this Appellant's integration into a country of which, in spite of his being one of its nationals, he had no past experience of any meaningful kind. Further, the FTT had decided the case on the basis of the case made by the Respondent, in the light of the evidence presented by the Appellant in support of his claim, in the decision letter and in argument. Having rejected that case, on the evidence, it was right for the FTT to allow the appeal.
Background Facts
The background facts are as follows.
The Appellant and both his parents are nationals of Jamaica. The Appellant was born in Jamaica on 11 April 1999. The Appellant's mother is Ms Casina Gibson, also born in Jamaica on 27 October 1979. His father, Donovan Lowe (born 26 March 1970, also in Jamaica) stated in his witness statement that he had moved to the United Kingdom during the mother's pregnancy with the Appellant. In 2002, the Appellant, then aged 3, and his mother also moved to the UK to join the father. The parents separated in 2005 and the Appellant continued to live with his mother. The father's evidence indicated that he has three further children, all born in this country. The mother also has two further children born since her separation from the Appellant's father.
The Appellant became subject to the deportation order because of a criminal conviction. On 29 September 2017, in the Avon and Somerset Magistrates' Court, he had pleaded guilty to possession of a controlled drug of Class A (crack cocaine), with intent to supply, and to possession of a bladed article (a knife) in a public place. The offences had been committed in March 2017 when the Appellant was a few weeks short of his 18 th birthday. He appears to have been committed to the Crown Court for sentence; we have before us the Crown Court judge's sentencing remarks. On 19 October 2017, in the Crown Court at Bristol, after full credit for his guilty pleas and his previous good character, he was sentenced by HH Judge Lambert to a term of imprisonment of 2 years and 4 months for the drugs offence, with no separate penalty being imposed for possession of the knife. In the sentencing remarks, the judge said that he took into account the mitigation, which he did not set out in any detail, apart from commenting that: “The cards have not fallen well for you”.
Following the conviction the Respondent made the deportation order.
The Respondent's Decision on the Appellant's Human Rights Claim
As required by the Immigration Rules, in considering the Appellant's human rights claim in resistance to the order, the Respondent addressed the question whether he fell within the “private life exception to deportation” in para. 399A. The relevant requirements were:
“(a) the foreign criminal has been lawfully resident in the UK for most of his life, and
(b) the foreign criminal is socially and culturally integrated in the UK, and
(c) there would be very significant obstacles to the foreign criminal's integration into the country to which he is proposed to be deported”.
It was accepted by the Respondent that (a) and (b) of this test was satisfied in the Appellant's case. However, it was found that (c) was not. The reasons given were these:
“It is not accepted that there would be very significant obstacles to your integration into the country to which it is proposed to deport you. This is in part because in your submissions you have stated that “We are instructed that he was not too close to his father's side of the family. He has close ties with his mother, step brother, his uncles and cousins from his mother's side”. Therefore it has been taken that your father and your extended family still live in Jamaica (as you entered the UK with your mother, and you have not provided evidence otherwise) and therefore they would be able to help you readjust to your new life in Jamaica following your deportation. Further, you are now an adult, a national of Jamaica, and educated in the UK, which means that irrespective of any familial support in Jamaica, you would be able to obtain employment, obtain help or assistance from the Jamaican government commensurate with your Jamaican nationality and you speak English which is a national language of Jamaica.
Further, you have provided no evidence that your deportation would result in your mother or other members of your family in the UK losing all contact with you. It is acknowledged that their subsequent communication with you might not be the same as remaining in the family home, or even living separately in the same country, but it is considered that you could maintain contact with them if you wish, and there is no evidence that they would be unable to visit you in Jamaica. It is acknowledged that your absence will likely result in some negative emotional impact on your family members here, but they will continue to be able to keep in touch with you through the use of modern modes of communication.
Therefore, having considered the individual facts of your case, it is not accepted that you meet the requirements of the private life exception to deportation.”
After these findings, the Respondent addressed the question whether there were “very compelling circumstances” such that the Appellant should not be deported. It was found that there were none. The letter stated:
“Notwithstanding your length of residence and presence in the UK since early childhood, you have been convicted of serious criminality. It is acknowledged that you were relatively young when you received your most recent conviction, but having taken that factor into account with the other factors which count in your favour, it is still not accepted that the public interest in proceeding with your deportation is outweighed.”
Accordingly, the Article 8 claim was refused. The Appellant appealed to the FTT.
The battleground for that appeal was the Appellant's contest to the points raised in the Respondent's decision letter as to whether there were very significant obstacles to integration. The Respondent was saying that the Appellant failed to satisfy the requirement that there should be “very significant obstacles” to integration because the Appellant's father and extended family were still in Jamaica and available to support him. Although it was being said by the Respondent that, whether that support existed or not, he was an adult with some education, who could get employment or assistance from the local government, family or no family, that was a secondary judgment made without having seen the Appellant himself. It was not being held against him, as it was later in the UT, that he had not produced evidence showing that “he had made any real attempt to sort out how he might live in Jamaica”, including questions of employment difficulties or how he might not be able to obtain accommodation there.
The FTT Decision
In passages of the FTT decision, which have provoked no criticism, either by the Respondent or the UT, the FTT judge set out the relevant provisions of the Immigration...
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