CM (Deportation – Article 8) Jamaica
| Jurisdiction | England & Wales |
| Judgment Date | 18 May 2005 |
| Date | 18 May 2005 |
| Court | Asylum and Immigration Tribunal |
Immigration Appeal Tribunal
The Honourable Mr Justice Ouseley (President), Ms C Jarvis (Vice-President) and Mr P S Aujla
Representation:
Mr F Omere instructed by Paragon Law, for the Claimant;
Ms P Ramachandran, Home Office Presenting Officer, for the Respondent.
Cases referred to in the judgment:
_S_K (ReturnEthnic Serb) Croatia CG* [2002] UKIAT 05613
Huang v Secretary of State for the Home Department; Abu-Qulbain v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
R (on the application of Razgar) v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
Legislation judicially considered:
Immigration and Asylum Act 1999, s 77(4)
Immigration Rules HC 395 (as amended), Rule 364
Deportation Article 8 of the ECHR Rule 364 of the Immigration Rules
Following the Claimant's conviction for robbery, the Secretary of State for the Home Department gave notice of a decision to make a deportation order against him on the grounds that it would be conducive to the public good. The Claimant appealed on immigration grounds. He also argued that his removal would violate his right to family life under Article 8 of the ECHR, on the basis of his continuing contact with his son in the United Kingdom. The Adjudicator dismissed the appeal on both grounds. He concluded that the gravity of the offence outweighed the compassionate circumstances relied on under Rule 364 of the Immigration Rules HC 395 (as amended). He also found that although deportation would constitute a significant interference with the Claimant's family life with his son, contact could be maintained by telephone and visiting.
The Immigration Appeal Tribunal refused permission to appeal. On judicial review, the Administrative Court quashed the decision on the grounds that the Adjudicator erred in confining himself to the facts at the date of the Secretary of State's decision. Subsequent evidence should have been taken into account when determining the claim under Article 8.
Held, dismissing the appeal:
(1) there were differences in the application of Rule 364 and Article 8; on appeal from the Secretary of State under Rule 364 the decision-maker had first to decide whether the balance between the public interest and other relevant factors was correct in the circumstances (para 34);
(2) Rule 364 covered the effect of deportation on other family members not being deported; thus, the effect of the deportation on the son was relevant in this case; under Article 8, the effect of the deportation on the son would be limited to its consequential effect on the Claimant, as the former was not being removed; compassionate circumstances might be considered under Article 8, but only when forming part of arguments regarding family and private life; by contrast, compassionate circumstances would be a necessary consideration under Rule 364; the appeal under the Immigration Rules was, therefore, wider than the appeal under Article 8 (paras 35 and 36);
(3) following the decision of the Court of Appeal in Huang and Others v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105, in deportation cases the position under the Immigration Rules should be considered first; if a case failed under the Immigration Rules, it would be difficult to find a decision to deport disproportionate under Article 8 (para 38);
(4) given the gravity of the offence in this case, the factors favourable to the Claimant could not outweigh the legitimate public interest in his removal; the Adjudicator's overall conclusions in relation to Rule 364 and Article 8 remained sound (paras 48, 49 and 50).
Determination and Reasons
Mr Justice Ouseley, President
[1] 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.
[2] 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.
[3] 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 _S_K [2002] UKIAT 05613.
[4] 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 2004. The 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.
[5] 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.
[6] 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.
[7] 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.
[8] 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...
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