DM (Jamaica) v SSHD
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick |
| Judgment Date | 11 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1371 |
| Date | 11 November 2015 |
| Docket Number | Case No: C5/2014/2584 |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 1371
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(DESIGNATED IMMIGRATION JUDGE DEPUTY UPPER TRIBUNAL JUDGE MONSON)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Case No: C5/2014/2584
Mr Russell Wilcox (instructed by Thompson & Co Solicitors) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
(Approved by the court)
This is a renewed application for permission to appeal following refusal on paper by the single Lord Justice. The applicant in this case is a national of Jamaica who appears to have to come to this country in the early 1990s on a Visitor's visa and thereafter remained as an overstayer when his leave to remain expired. There has been no suggestion that he made any attempt to regularise his presence in this country until the present proceedings were begun in March 2011.
The proceedings have a long and rather tortuous history, which it is fortunately unnecessary to describe in detail for the purposes of this application. It is important, however, to mention that between 2003 and 2010 the applicant was convicted on a number of occasions for driving offences and failing to answer to bail. Eventually he was sent to prison for a total of 16 months.
Shortly after he was sent to prison the applicant was served with a notice of liability to deportation on the grounds that his presence in this country was not conducive to the public good. He sought to challenge that decision and the subsequent deportation order which was made against him in March 2011 on the grounds that his removal would infringe his rights under Article 8 of the European Convention on Human Rights.
On 17 April 2012 the Secretary of State refused to revoke the deportation order and the applicant appealed to the First-tier Tribunal in a bid to have it set aside. There then followed hearings in the First-tier Tribunal and the Upper Tribunal which extended over a period of some two years culminating in the decision of the Upper Tribunal against which permission to appeal is now sought. The basis of the applicant's challenge to the deportation order is that he enjoys family life in this country with his partner and their children and that his removal to Jamaica would disproportionately interfere with his rights and those of his partner and children.
The First-tier Tribunal which heard his appeal for the second time following the remission of his case by the Upper Tribunal considered his position both under the terms of the Immigration Rules and under the general law relating to interference with private and family life. It held that he could not succeed under the Immigration Rules, but that his removal would involve a disproportionate interference with his Article 8 rights. It was against that decision that the Secretary of State appealed to the Upper Tribunal.
It is necessary to mention at this point that the Immigration Rules were amended with effect from 9 July 2012 in a number of ways, but as far as this case is concerned by the addition of paragraphs 398, 399 and 399A, which make specific provision for the position of foreign criminals whose presence in this country is considered not to be conducive to the public good. Under the new version of the rules persistent offenders, amongst others, were required to show what in the rules were described as "exceptional circumstances" for remaining here if they could not bring themselves within one of the categories identified in paragraphs 399 or 399A.
Paragraph A362 of the new rules provided as follows:
"Where Article 8 is raised in the context of deportation under Part 13 of these rules the claim under Article 8 will only succeed where the requirements of these rules as of 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order as appropriate was served."
The First-tier Tribunal held that the applicant fell within paragraph 398 of the Rules because he was a persistent offender, but that his relationship with his partner and children did not fall within paragraphs 399 or 399A. It therefore had to...
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