CG (Jamaica) (Appellant/Respondent) v The Secretary of State for the Home Department (Respondent/Appellant)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Laws,Lord Justice Tomlinson,Lord Justice Christopher Clarke
Judgment Date10 February 2015
Neutral Citation[2015] EWCA Civ 194
Docket NumberC5/2013/1869
Date10 February 2015

[2015] EWCA Civ 194

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(Mr Justice Blake and Deputy Upper Tribunal Judge Phillips)

Royal Courts of Justice

Strand

London, WC2A 2LL

BEFORE:

Lord Justice Laws

Lord Justice Tomlinson

Lord Justice Christopher Clarke

C5/2013/1869

CG (Jamaica)
Appellant/Respondent
and
The Secretary of State for the Home Department
Respondent/Appellant

Mr Neil Sheldon (instructed by The Treasury Solicitor) appeared on behalf of the Appellant

Mr John Walsh and Mr Conor McCarthy (instructed by Owen Stevens Solicitors) appeared on behalf of the Respondent

Lord Justice Laws
1

This is the Secretary of State's appeal, with permission granted by myself on 23 December 2013, against the decision of the Upper Tribunal promulgated on 13 May 2013 upholding the determination of the First-Tier Tribunal ("the FTT") of 29 October 2012. The FTT had allowed the appeal of the respondent, CG, against the decision of the Secretary of State by notice of 18 August 2012 to deport him on the ground that his deportation would be conducive to the public good.

2

The respondent is a Jamaican national born on 20 June 1994. He arrived in the United Kingdom on 11 June 2001 when he was seven and obtained a visitor's leave to visit his grandmother. He overstayed. An application was made on his behalf for leave to remain. That was refused on 17 October 2003. But on 8 January 2007 his appeal against the refusal was allowed and on 5 March 2007 he was granted indefinite leave to remain as a dependant of his grandmother.

3

On 27 June 2008, when he was 14, the respondent committed the first of 18 criminal offences for which he has some ten convictions. In 2008 he was sentenced on two occasions for offences of possessing a bladed instrument and theft; in 2009, on one occasion, for possessing a bladed instrument; three occasions in 2010, variously for possessing an offences weapon, theft, robbery, attempted robbery, and failing to comply with the requirements of a detention and training order. He had one court appearance in 2011 for failing to comply with the requirements of a youth rehabilitation order.

4

Then on 26 January 2012, upon his pleas of guilty, he was sentenced by HHJ Hillen at the Blackfriars Crown Court to a detention and training order for two years for seven offences of supplying heroin and crack cocaine. The term was subsequently reduced by the Court of Appeal to 18 months. The respondent committed these offences when he was 16 and was sentenced when he was about 17 and a half.

5

There followed the Secretary of State's notice of intention to deport, given on 18 August 2012, pursuant to section 3(5)(a) of the Immigration Act 1971 on the ground that his deportation would be conducive to the public good. As the decision letter shows, the Secretary of State was particularly concerned at the context of the respondent's later offending, his involvement in gang culture. The decision letter has this:

"Evidence provided by the Metropolitan Police confirms this and identifies you as a member of the Queens Crescent gang. Whilst the Police identify you as a foot soldier within the gang, an MG11 statement provided by Chief Superintendent John Sutherland is clear about the damage caused by the Queens Crescent gang. He refers to members of the Queens Crescent gang as 'a malevolent and wholly damaging influence on the Queens Crescent environs — causing untold damage to local community life and well-being'. In his sentencing remarks, the Judge has also had reference to the statement from the Chief Superintendent. The Police have stated that if you are released from custody, you will reconnect with the gang.

"25. The Police Camden Youth Violence Team (YVT) has provided extensive intelligence about your involvement with the Queens Crescent gang. This information adds considerable weight to the belief that you present a serious risk of harm and you are a persistent offender. Therefore your deportation is conducive to the public good."

6

It is to be noted that had the respondent been over the age of 18 at the date of his sentence, section 32 of the UK Borders Act 2007 would have obliged the Secretary of State to make a deportation order against him as a foreign criminal, subject to his Convention rights.

7

Before the tribunals the case fell to be considered, as it does in this court, in light of paragraphs 398 to 399B of the Immigration Rules introduced on 9 July 2012. They provide as follows:

"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and

(a) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(b) the deportation of the person from the UK is conducive to the public good because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 4 years but at least 12 months; or

(c) the deportation of the person from the UK is conducive to the public good because, in the view of the Secretary of State, their offending has caused serious harm or they are a persistent offender who shows a particular disregard for the law,

the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.

399. This paragraph applies where paragraph 398(b) or (c) applies if —

(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case

(a) it would not be reasonable to expect the child to leave the UK; and

(b) there is no other family member who is able to care for the child in the UK; or

(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen, settled in the UK, or in the UK with refugee leave or humanitarian protection; and

(i) the person has lived in the UK with a valid leave continuously for at least the 15 years immediately preceding the date of the immigration decision (discounting any period of imprisonment); and

(ii) there are insurmountable obstacles to family life with that partner continuing outside the UK.

399A. This paragraph applies where paragraph 398(b) or (c) applies if —

(a) the person has lived continuously in the UK for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK; or

(b) the person is aged under 25 years, he has spent at least half of his life living continuously in the UK immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

399B. Where paragraph 399 or 399A applies limited leave may be granted for a period not exceeding 30 months. Such leave shall be given subject to such conditions as the Secretary of State deems appropriate."

8

At the time of the FTT decision, 29 October 2012, the new rules had thus recently been introduced. There was no learning from the higher courts as to their effect.

9

Before coming to the determinations of the FTT and the Upper Tribunal on the respondent's appeal against the Secretary of State's deportation decision, it is convenient to address the judgment of this court (Lord Dyson MR, Davis and Gloster LJJ) in MF (Nigeria) v Secretary of State for the Home Department [2014] 1 WLR 544, [2013] EWCA Civ 1192, in which the court gave detailed consideration to the interpretation of these new rules. The judgment was handed down on 8 October 2013, therefore after the determinations both of the FTT and the Upper Tribunal in the present case.

10

Giving the judgment of the court, Lord Dyson said this:

"It is common ground that the first step that has to be undertaken under the new rules is to decide whether deportation would be contrary to an individual's article 8 rights on the grounds that (i) the case falls within para 398(b) or (c) and (ii) one or more of the conditions set out in para 399(a) or (b) or para 399A(a) or (b) applies. If the case falls within para 398(b) or (c) and one or more of those conditions applies, then the new rules implicitly provide that deportation would be contrary to article 8."

11

Then at paragraph 36:

"36. What is the position where paras 399 and 399A do not apply either because the case falls within para 398(a) or because, although it falls within para 398(b) or (c), none of the conditions set out in para 399(a) or (b) or para 399A(a) or (b) applies? The new rules provide that in that event, 'it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors'."

12

Then I may go to paragraph 43 of the judgment:

"43. The word 'exceptional' is often used to denote a departure from a general rule. The general rule in the present context is that, in the case of a foreign prisoner to whom paras 399 and 399A do not apply, very compelling reasons will be required to outweigh...

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