Gurung v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Blake, |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] UKUT 273 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 July 2010 |
[2010] UKUT 273 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Blake, PRESIDENT
SENIOR IMMIGRATION JUDGE Eshun
For the Appellant: Mr Zane Malik, Counsel, instructed by Malik Law Chambers, Solicitors
For the Respondent: Mr J. Parkinson, Home Office Presenting Officer
RG (Automatic deport — Section 33(2)(a) exception) Nepal
-
1. When considering the automatic deportation provision in s. 32(5) UK Borders Act 2007, and the exemption at s.33(2)(a) relating to the claimant's private and family life (Article 8 ECHR), the Tribunal must give careful consideration to the factors set out at paragraphs 70-73 of Maslov v Austria [2009] INLR 47 ECHR .
-
2. Particular care is required in relation to the consideration of the Article 8 ECHR impact on those who were lawfully resident in the UK at the time when the offence was committed.
The appellant in this case is a citizen of Nepal born on 7 February 1988. He entered the United Kingdom on 24 February 2005, with a settlement visa showing that he was accompanying a parent. He was granted indefinite leave to remain. The appellant's father had served in the Brigade of Ghurkhas for eighteen years, and in 2005 when discharged on completion of his service had been granted indefinite leave to enter and remain in the UK. The other members of the appellant's immediate family came to the UK a little later and included his mother and his sister who first completed her education here in Nepal before relocating here. The appellant himself had been born in Hong Kong, where the Brigade of Ghurkhas used to have its HQ but only lived in that country for a short period and had returned to Nepal. The appellant's uncle had also been a serving soldier in the brigade of Ghurkhas and has been settled in the UK for longer than the appellant's father. It seems other members of his father's family now reside in Hong Kong. The appellant lived with his parents in the UK and was financially supported by them. He was studying to become an accountant, and his father paid his course fees.
On the night of the 12 April 2008 there was an incident at the Temple Pier of London when the appellant was involved in violent disorder with two other young men which ended with the victim, Mr Bishal Gurung, being thrown into the River Thames where he drowned. The victim and all the other participants were themselves Nepalese citizens. The appellant was arrested, charged with serious offences, and tried at the Central Criminal Court.
On 29 May 2009 he was convicted of the offences of manslaughter and violent disorder. He was sentenced at the same Court on 10 July 2009 to a total of three years in prison. He was not recommended for deportation. However, he was subject to the regime of automatic deportation pursuant to s. 32(5) of the UK Borders Act 2007.
He contended he was exempt from the requirement of automatic deportation because any such measure would breach his convention right, namely his right for family and private life pursuant to Article 8 of the European Convention of Human Rights (see UK Borders Act s. 33(2)(a)). The SSHD did not accept that the appellant was so exempt and issued a deportation notice on 23 October 2009. He appealed that notice to a panel of the AIT. The appeal was heard on 23 December 2009 and a determination dismissing that appeal was promulgated on 5 January 2010.
The appellant applied for reconsideration on two grounds. First, that the application of automatic deportation to him for an offence committed in 2008 was incompatible with the Article 7 of the ECHR as it was a retrospective penalty, and second, that the panel failed to properly apply the learning on Article 8 and its particular conclusions in the case. Reconsideration was ordered by SIJ Storey on 28 January 2010 and the matter came before us for determination as an appeal to the Upper Tribunal on 4 May 2010.
On that day counsel for the appellant applied for an adjournment to enable the Tribunal to have the benefit of the decision of the Court of Appeal on the Article 7 point in the case of AT (Pakistan) and JK (Pakistan) v SSHD [2010] EWCA Civ 567 where the argument had been made on 23 March 2010 and judgment was expected imminently.
We refused the application as we did not consider it reasonably likely that deportation would be considered a penalty within the terms of Article 7. In reaching that conclusion we had in mind the judgement of the Grand Chamber of the European Court of Justice in Uner v the Netherlands [2006] ECHR 873, where at paragraph 56 the Court said: -
“It is moreover of the view that the decision to revoke a resident's permit and to impose an exclusion order on a settled migrant following a criminal conviction in respect of which that migrant has been sentenced to a criminal law penalty does not constitute a double punishment either for the purposes of Article 4 of protocol 7 or more generally. Contracting States are entitled to take measures in relation to persons who have been convicted of criminal offences in order to protect society – provided, of course that, to the extent those measures interfere with the rights guaranteed by Article 8, para 1 of the Convention, they are necessary in a democratic society and proportionate to the aim pursued. Such administrative measures are to be seen as preventive rather than punitive in nature (see Maaouia v France).”
We are further aware that the question of retrospective application of the automatic deportation regime had been considered by Nicol J in Rashid Hussein v SSHD [2009] EWHC 2492 (Admin). We noted that experienced counsel appearing in that case had not sought to argue that Article 7 of the ECHR was engaged although it would have provided an answer to the point at issue. We indicated, however, that in the event that the Court of Appeal came to another decision, the parties could make representations to us as to what the appropriate course might be. We were further influenced in that decision by the knowledge that the appellant remained in immigration detention having served his sentence and was entitled to know the outcome of his appeal as soon as was reasonably practicable.
In the event, on the 26 May 2010, the Court of Appeal dismissed the appeal in AT (Pakistan) [2010] EWCA Civ 567 agreeing with the decision of Nicol J and that of the European Commission in Moustaquim v Belgium 12 October 1989 rejecting the Article 7 case unanimously on the basis that deportation is not an additional penalty but a security measure. We observe that Uner v Netherlands does not appear to have been cited to the Court.
We accordingly proceeded to consider this appeal on the basis of the second ground for reconsideration, namely whether the panel had correctly assessed the appellant's claim to protection under Article 8 ECHR.
The AIT panel had heard from the appellant, his sister, his father and his uncle. The tenor of that evidence was that upon settling in the United Kingdom the family home in Nepal had been sold. The appellant had some friends in Nepal from his time there but no longer had any close family resident there. His father's other three brothers were resident in Hong Kong which the appellant could not enter even though he had been born there since he did not comply with the nationality and immigration regulations of that country. He would accordingly be isolated if he returned to Nepal and it would be very difficult for him to establish himself on his own there. His father said:–
“I cannot leave him alone, my wife and myself need to go with him…. People will treat him very badly because he has been to jail… connection between here and there. Many people from Ghurkhas connection back there also… it was in the newspapers. No-one will give him shelter. I cannot go as I have a mortgage to pay and work. My wife cannot go as she has depression after her own mother's death. She would not be able to cope; it will be a disaster in our lives. We have no extended family.”
The father was working as a bus-driver, paying the mortgage on his house in the UK, as well as supporting his son financially.
The Home Office submission was that:
“it was not accepted that there was a family life, as there were no issues of dependency beyond the normal ties. It was cheaper for the Appellant to live with his parents whilst he was studying and his parents were assisting him financially, however, he had had part-time work in the past.”
It was also submitted that there was very little private life as the appellant had only been in the UK for four years, some of which was following his arrest and detention. It was submitted it was not beyond a degree of hardship for the whole family to relocate to Nepal. There was no right to choose where a family life should be exercised. Further, even if there was an unreasonable interference, the public interest and proportionality were relevant. The appellant had been convicted of a very serious crime and although he had a previous good character, and the crime was out of character, it was a very serious offence after a prolonged period of violence.
The panel reminded itself of the key jurisprudence from the UK courts and the decision of the ECtHR in Maslov v Austria and then considered the first question whether it had been established that there was a family life. They looked in turn at the position of the appellant's mother, father, sister and uncle to see whether there was a situation of dependency other than the normal in respect of an adult child and his family applying the test in Kugathas v SSHD [2003] EWCA Civ 31.
It concluded as follows:
“we are not satisfied after...
To continue reading
Request your trial
-
Israr Shah (Anonymity Direction Not Made) v The Secretary of State for the Home Department
...Hamid) v Secretary of State for the Home Department [2012] EWHC 3070 (Admin) RG (Automatic deport — Section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC); [2011] Imm AR 84; [2011] INLR 629 Secretary of State for the Home Department v AJ (Zimbabwe); Secretary of State for the Home Departme......
-
Pun and Others (Gurkhas—Policy—Article 8) Nepal
...the Home DepartmentUNK [2006] EWCA Civ 379; [2006] Imm AR 417; [2006] INLR 354 RG (Automatic deport—Section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC); [2011] Imm AR 84; [2011] INLR 629 RP (Zimbabwe) and RP (Zimbabwe) v Secretary of State for the Home DepartmentUNK [2008] EWCA Civ 825 ......
-
Upper Tribunal (Immigration and asylum chamber), 2017-02-17, HU/07208/2015
...UKBA 2007 – public interest) Ghana [2010] UKUT 328 (IAC) and RG (Automatic Deportation – Section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC). He stated that although this was not an automatic deportation case, it seemed to him that much of the guidance contained within these decisions r......
-
Omotunde (Best Interests) - Zambrano Applied - Razgar) Nigeria
...of the public interest engaged, and on the facts of the particular case: see RG (Automatic deport – section 33(2)(a) exception) Nepal [2010] UKUT 273 (IAC); [2011] Imm AR 84. We recognise that there can be a public interest in deporting both those who are personally dangerous or a persist......