IT (Jamaica) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson |
| Judgment Date | 08 March 2016 |
| Neutral Citation | [2016] EWCA Civ 301 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2015/0977 |
| Date | 08 March 2016 |
[2016] EWCA Civ 301
Lord Justice Tomlinson
Case No: C5/2015/0977
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr Marcus Pilgerstorfer (instructed by the Government Legal Department) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
This is a renewed application to bring a second appeal in respect of a determination by the Upper Tribunal promulgated on 10 November 2014. There was on that occasion before the Upper Tribunal an appeal by the Secretary of State against a decision of the First-tier Tribunal promulgated on 9 June 2014 pursuant to which the First-tier Tribunal allowed the appeal of the Appellant, to whom I will refer as IT.
IT is a national of Jamaica born on 9 April 1979. He arrived in the United Kingdom as a visitor on 1 November 2000 and failed to leave the United Kingdom upon the expiration of his six-month leave to enter. He took no steps to regularise his position. He apparently met his partner in 2002 or 2004 and they began to cohabit in 2006. There are five children.
On 4 May 2004 IT was convicted of supplying class A drugs. He was sentenced to five terms of four years' imprisonment, those terms ordered to run concurrently. It appears that he was convicted under a name which was not his own. The circumstances in which that occurred are discussed by the First-tier Tribunal. He was released from prison sometime in 2006 having no doubt spent some time on remand prior to his conviction. There was other criminality following his release from prison.
One of the problems that has arisen in this case is that as a result of having been convicted under the name "Simon Anthony Merchant" the Secretary of State was not notified at the time of a conviction registered against him in the name "IT". Similarly when in June 2013 he was convicted for the possession of a class B drug and when in 2011 he was cautioned by the police for assault it would seem that the connection was not made between IT and the very serious conviction in 2004 which attracted the four-year sentence of imprisonment.
The significance of the four-year sentence of imprisonment is of course that Rule 398 of the Immigration Rules in the form in which they were applicable at the time of the Secretary of State's decision to deport provide that:
"398. Where a person claims that their deportation would be contrary to the UK's obligations under Article 8 of the Human Rights Convention, and
(a) the deportation of the person from the UK is conducive to the public good and in the public interest because they have been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;
[…]
the Secretary of State in assessing that claim will consider whether paragraph 399 or 399A applies and, if it does not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors."
Paragraphs 399 and 399A are only applicable in circumstances where paragraph 398B or 398C applies but not where sub-rule 398A is applicable,...
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