CM (Deportation – Article 8) Jamaica
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE OUSELEY,PRESIDENT |
| Judgment Date | 18 May 2005 |
| Neutral Citation | [2005] UKIAT 103 |
| Date | 18 May 2005 |
| Court | Immigration Appeals Tribunal |
[2005] UKIAT 103
IMMIGRATION APPEAL TRIBUNAL
The Honourable Mr Justice Ouseley (President)
Ms C Jarvis (Vice President)
Mr P S Aujla
For the Appellant: Mr F Omere, instructed by Paragon Law
For the Respondent: Ms P Ramachandran, Home Office Presenting Officer
CM (Deportation — Article 8) Jamaica
This is an appeal against the determination of an Adjudicator, Mr L A North, promulgated as long ago as 9 October 2002. The Appellant, who is a male citizen of Jamaica born in 1959, appealed to the Adjudicator against the Secretary of State's decision in March 2002 to make a deportation order against the Appellant on the ground that his removal would be conducive to the public good. This was because the Appellant had been convicted of robbery in June 1999.
The Adjudicator dismissed the appeal under both the Immigration Rules and on human rights grounds. The Tribunal refused permission to appeal in November 2002 but Judicial Review of that was sought and the decision of the Tribunal was quashed by consent in an Order dated 23 September 2003 and stamped 13 October 2003.
The basis upon which the refusal of leave to appeal was quashed was that the Adjudicator was said to have disregarded certain evidence on the grounds that he was precluded by section 77(4) of the Immigration and Asylum Act 1999 from having regard to it. It was said to be arguable that that was an error in particular in the light of the Tribunal's decision in SK [2002] UKIAT 05613.
The application for permission to appeal therefore came back before the Tribunal, this being a Judicial Review rather than a Statutory Review case, and it was granted in a determination dated 21 October 2004 and notified on 29 November 200The reason for delay in the application for permission to appeal coming before the Tribunal, following the quashing of its earlier decision, does not appear from the file. It was a common but unsatisfactory feature of Judicial Review that the successful applicant might feel no urgency in notifying the Tribunal of his success and the losing Secretary of State, who had a contrary interest, might not have regarded it as his obligation to do so instead. It may on the other hand be that there was an administrative inefficiency at the Tribunal. We do not know.
The Appellant came to the United Kingdom in 1987 as a visitor with four weeks leave to enter and was granted a six-month extension, during which time he married and thereafter was granted indefinite leave to remain. He was divorced in October 2001; but the marriage had ended as a relationship in the early nineties; there were no children of that marriage.
His immigration history and his alleged offending behaviour had been interwoven to some degree. His September 1994 arrest, in connection with the search of car in which a knife and a forged fifty pound note were found, had occurred when he was sitting in the driver's seat of a car hired by Valmore Talbot; he said that his true identity was CM, the name on a letter from British Rail in his possession. But he had been returned to Jamaica as Valmore Talbot; there he had been believed to be CM, had been returned to England, where Ms Cole, his son's mother, had brought his Jamaican passport to the airport. The Secretary of State's refusal letter said that he had been given leave to enter as returning resident CM, having been removed as illegal entrant Talbot. There seems to have been some connection with a Ms Talbot, and her application to enter was associated with his file.
He had been wrongly alleged to be a Neville Smith when arrested in 1995 for possession of crack cocaine; it was at court that he had been recognised to be CM. He was acquitted.
The offence which has led to the decision under appeal was committed in January 1999. The sentencing remarks of His Honour Judge Gerber in June 1999, following the Appellant's conviction by the jury, described the offence as “ very serious indeed”, “ … this was a plan, in which another woman was laid as a bait in the street, got the unsuspecting victim to come to the door of the house, you drag him in, and then produce a knife, which we have seen, hold it to his throat and then proceed to rob him of all his money. Having held him for some twenty minutes, when the street is clear, he is bundled into the street without his money and threatened not to report it to the police.” He was sentenced to five years in imprisonment. No recommendation for deportation was made. He blamed the offence on drug taking and the woman who he said had instigated it. He had only one previous conviction for handling a stolen credit card, for which he had received a prison sentence.
The Appellant's evidence to the Adjudicator was that he had a daughter in the United Kingdom by one woman, but he did not know where they were. He also had a son in the United Kingdom by another woman. Both children were about seven years old at the time of the Adjudicator's hearing, combining his statement and his grounds of appeal, although other material suggests the daughter was four years older. In November 2001, in prison, he married another woman, a Jamaican national living in the United Kingdom, who has now sought leave to remain as the spouse of a person present and settled in the United Kingdom.
He said that he was remorseful of his past actions, wanted now to provide for his family, had room for his son to visit, was involved in a local community group, but if deported would be unable to seek entry clearance to visit his son or to maintain telephone contact. The son's mother had been expected to attend the Adjudicator's hearing; he did not know why she had not done so. He also had good prospects of full-time, permanent responsible employment and he had put his time in prison to good use. He spoke to his son three times a week, aspired to staying in contact and paid varying amounts of maintenance, irregularly.
The Adjudicator considered paragraph 364 HC 395 which provides for a striking of a balance in deportation cases between the public interest, compassionate circumstances and the aim of consistency and fairness. He also set out the appropriate approach to Article 8 ECHR, save that he erred, in the light of SK, in construing section 77(4) of the 1999 Act as confining his attention to the facts as at the date of the SSHD's decision.
The Adjudicator concluded that the Secretary of State's policy of deporting those convicted of violent offences was not wrong, that His Honour Judge Gerber's sentencing remarks and the five-year sentence showed the seriousness of the robbery offence. It was a “ particularly serious offence”. In considering the counter-balancing factors in paragraph 364 of HC 395, the Adjudicator pointed to the absence of any matters making return to Jamaica unduly difficult. This was where the Appellant had spent his formative and a significant part of his adult years.
There was no connection remaining with his first wife. His statements showed no continuing connection with the daughter or her mother. The Adjudicator accepted a continuing contact with the son as described above. From Jamaica, the Appellant could continue to telephone, and could seek visiting contact through entry clearance. It was significant to the Adjudicator that the son's mother had not attended to give evidence in support. There was no evidence as to the effect on the son of any loss of or reduction in contact with the Appellant, though the son valued the fortnightly contact visits. Deportation would constitute a significant, partial interference with the Appellant's family life with the son. Some forms of contact could be maintained. The Appellant's wife could return to Jamaica with him and thus each could continue their family relationship. His employment skills and community links could be maintained in Jamaica, although they might take a different form.
The Adjudicator then examined the Appellant's past record. He did not accept at face value the Appellant's past denial of dissembling about his identity and was persuaded that he gave and had been deported in the false name of Talbot. He also rejected the denial by the Appellant that a false name had been given on arrest in 1995. It concerned the Adjudicator that the probation officer had assessed him as having a fourteen percent chance of re-offending.
Overall, the Adjudicator concluded that the gravity of the offence outweighed the compassionate circumstances relied on under the Immigration Rules. There would be a significant impact on his relationship with his son but some form of telephone or visiting contact would be maintained. His relationship with his wife could be maintained on return to Jamaica. There was no breach of Article 8. The appeal was dismissed.
The Appellant contended that the Adjudicator had erred in four respects. He had failed to appreciate the full extent of contact between the Appellant and his son, and there was also further evidence now to support the extent of that relationship; his reasoning on the material was inadequate or had ignored material aspects. He had also excluded relevant post Secretary of State decision material because of his flawed interpretation of section 77 (4) of the 1999 Act. Second, he had overstated the Appellant's ability to maintain contact with his son from Jamaica, and to return for contact. Third, the Adjudicator had ignored positive aspects of the Appellant's behaviour in prison and after release. Fourth, the Adjudicator had misunderstood the significance of the evidence about the risk of re-offending.
It is not in dispute but that section 77 (4) had been misunderstood by the Adjudicator in the light of SK, above, and that evidence about matters arising after the Secretary...
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