DA (Colombia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AIKENS,Lord Justice Wall,Lord Justice Rix |
| Judgment Date | 13 July 2009 |
| Neutral Citation | [2009] EWCA Civ 682 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/2844 |
| Date | 13 July 2009 |
[2009] EWCA Civ 682
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION APPEAL TRIBUNAL
IA/21840/2007
Lord Justice Rix
Lord Justice Wall and
Lord Justice Aikens
Case No: C5/2008/2844
Mr Danny Bazini (instructed by Leonard & Co, Solicitors, Southampton) for the Appellant
Mr John-Paul Waite (instructed by The Treasury Solicitor, London) for the Respondent
Hearing dates: 23 rd June 2009
This is an appeal under section 103B of the Nationality, Immigration and Asylum Act 2002 (“ the 2002 Act”), from the determination of the Asylum and Immigration Tribunal (“AIT”) given on a reconsideration by Senior Immigration Judge McKee on 17 th October 2008. The Appellant (“DA”), a Colombian national, had appealed against the decision of the Respondent (“the SSHD”) on 5 December 2007 to make a deportation order against him under section 5(1) of the Immigration Act 1971 ( the “1971 Act”), on the ground that the Secretary of State deemed DA's deportation to be conducive to the public good pursuant to section3(5)(a) of the 1971 Act.
Permission to appeal was refused on paper by Sir Richard Buxton. A renewed oral application was made before Sullivan LJ and he decided to grant permission on one ground only. That ground had not been argued below. Sullivan LJ considered, however, that this was an “obvious point on the face of the documents and there is a strong prospect of success”. In order to explain the point it is necessary to set out the background facts.
The facts
DA was born in Colombia on 22 May 1979. He arrived in the UK on 27 April 1989 (aged 9) with his Colombian grandmother, in order to visit his mother, who lived in the UK. His mother had previously been granted indefinite leave to remain in the UK after she had married a Spanish (and therefore EU) national. DA was granted indefinite leave to remain in the UK on 7 September 1989, as a dependant of his mother.
DA has lived in the UK since 1989, apart from a period between 1991 and 1993 when he returned to Colombia to live with his grandmother. DA also returned to Colombia for holidays when he was 19 and 23. At the age of 16 or 17, he left his mother's home and lived in his own flat. Between 1999 and 2004, he cohabited with a girlfriend, by whom DA had a son, J, who was born in 2000. When DA and his girlfriend broke up in 2004, J went to live with his mother. On the findings of the first AIT panel (dated 8 July 2008) there was no effective contact between J and DA after that time.
On 4 December 2004 DA was convicted of an offence relating to the destruction and damage of property. He received a Community Punishment Order of 40 hours unpaid work. He was also ordered to pay £500 compensation to the victim.
In April 2007, at Southwark Crown Court, DA pleaded guilty to an offence of assault occasioning actual bodily harm (“AOABH”) and also to an offence of being in possession of a false identity document with intent, viz. a false Spanish passport. The first offence arose out of an incident when DA attacked a former girlfriend (not the mother of J), using a screwdriver. HHJ Goymer sentenced DA on 30 April 2007 to a total of 2 years 6 months imprisonment. The sentence was made up as follows: 27 months for the AOABH offence and 3 months consecutive for the false passport offence.
Judge Goymer considered whether he should recommend deportation, pursuant to the Court's power to do so under section 6(1) of the 1971 Act. The judge decided he would not make such a recommendation. He gave his reasons in the course of his sentencing remarks. He said:
“I shall not in the circumstances make a recommendation for deportation despite the seriousness of the offence to which you have pleaded guilty. I bear in mind that you have lived in this country since a very young age. You have got indefinite leave to remain. But the factor that weighs very heavily with me is that you have a young son nearly 7 years of age. You had contact with him, certainly from birth up until the time he was about 312. Since then of course you and his mother have lived apart and there have been difficulties in that relationship. Whether you are allowed contact with him and under what conditions will be a matter for a family court to decide and not for me. But I do not think it right for that reason in the circumstances to make a recommendation for deportation. I decline to make such a recommendation ……”.
On 5 December 2007 the SSHD gave to DA Notice of a Decision to make a deportation order against him. The Notice stated:
“To [DA], Colombia 11 May 1978
On 01 February 2007 at Southwark Crown Court, you were convicted of assault occasioning actually bodily harm and possession of a false identity document with intent. In view of these convictions, the Secretary of State deems it to be conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5)(a) of the Immigration Act 1971 (as amended by the Immigration and Asylum Act 1999) requiring you to leave the United Kingdom and prohibits you from re-entering while the order is in force. She proposes to give directions for your removal to Colombia, the country of which you are a national.”
On the same day an explanatory letter was written to DA who was, at the time, still serving his prison sentence. The letter set out the background history of DA. At paragraph 5 it stated that the SSHD regarded the two offences for which he had been imprisoned as serious, particularly as one involved violence. At paragraph 7 of the letter there is a long quotation from the sentencing remarks of the judge which sets out his reasons for imposing the sentence that he did. Paragraph 8 of the letter states that, because of these convictions and the reasoning of the judge, consideration had been given as to whether or not deportation was appropriate in the case of DA. Paragraph 8 of the letter continues:
“Specific regard has been given to paragraph 364 of the Immigration Rules, that in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstance of the case. It will only be in exceptional circumstances that the public interest might be outweighed by compassionate circumstances where the deportation would be lawful under the Human Rights Act.”
Paragraphs 9 to 11 of the letter give personal details of DA and his convictions. Paragraph 12 of the letter deals with the question of whether or not DA could adjust to a new life in Colombia. It states, somewhat inaccurately, that DA spent his “youth and formative years” in Colombia, although, in fact, he had come to the UK when only 9 years old. It also states that the SSHD's “records” showed that DA received correspondence from his father and grandfather who still resided in Colombia. Those facts were subsequently challenged by DA, who said that his grandfather had been dead for 30 years.
Paragraph 13 of the letter deals with the position of DA's mother who was, by then, disabled. The paragraph states that DA's mother “is cared for by her husband and daughter”. The letter states that DA “would be able to remain in contact with your family via normal channels of communication …..”. It says, perhaps somewhat over-optimistically, that his family could visit him in Colombia should they wish to do so.
Paragraph 13 then deals with the relationship between DA and his son. It states:
“We are also aware that you have 1 child who is British and an ex-partner in the UK. Our records show that this relationship is not subsisting and that you last saw your son in 1996. [It is now said that this was a typographical error for 2006]. He has not written to you or visited you whilst you have been in prison. We also hold a copy of a court order advising you not to remove your son from their [sic] mother, house or school without the consent of the court. In considering whether it would be right to deport you the effect that deportation is likely to have upon you and your family and the wider community has been taken into account, as well as whether any disruption to your family and private life is justified in light of your criminal convictions.”
Paragraph 14 of the letter states that the Border and Immigration Agency is satisfied that upon balancing DA's rights to a family life and the legitimate aim of the UK to ensure the prevention of disorder or crime, his deportation would not place the UK in breach of Article 8 of the ECHR and the Human Rights Act 1998 (“ HRA”). Paragraph 15 of the letter states that the SSHD has concluded:
“……. That in the light of the seriousness of your criminal offence, your removal from the United Kingdom is necessary in a democratic society for the prevention of disorder and crime and for the protection of health and morals”.
Paragraph 16 of the letter states that careful consideration has been given to the question of whether DA should be allowed to remain in the UK because of its obligations under the ECHR. It concludes that,“…on the information available it is not believed that to deport you would breach our obligations under any of the Articles.” Paragraph 17 of the letter states that full careful consideration has been given to all the known facts of DA's case in line with paragraph 364 of HC 395, as amended: ie. the Immigration Rules. That paragraph...
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HK (Turkey) v Secretary of State for the Home Department
...clear whether he was asked to do so. I regard this point as neutral: as far as the present appeal is concerned see DA (Colombia) v Secretary of State for the Home Department [2009] EWCA Civ 682. 12 Paragraph 364 of the Immigration Rules, as amended HC 395 provides: “Subject to paragraph 380......