MK (deportation - foreign criminal - public interest) Gambia
| Jurisdiction | UK Non-devolved |
| Judge | Lord Justice Sedley,Latter,Ward |
| Judgment Date | 28 July 2010 |
| Neutral Citation | [2010] UKUT 281 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 July 2010 |
[2010] UKUT 281 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Lord Justice Sedley
SENIOR IMMIGRATION JUDGE Latter
SENIOR IMMIGRATION JUDGE Ward
For the Appellant: Mr P Deller, Home Office Presenting Officer
For the Respondent: Mr M Shamin, Counsel, instructed by Rock, Solicitors
MK (deportation — foreign criminal — public interest) Gambia
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(1) In automatic deportations made under s.32 (5) of the UK Borders Act 2007 the respondent's executive responsibility for the public interest in determining whether deportation is conducive to the public good has been superseded by Parliament's assessment of where the public interest lies in relation to those deemed to be foreign criminals within s.32(1)-(3). In consequence the respondent's view of the public interest has no relevance to an automatic deportation.
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(2) In such cases by virtue of s32(4) it is not open to an appellant to argue that his deportation is not conducive to the public good nor is it necessary for the respondent to argue that it is.
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(3) The seriousness of an offence and the public interest are factors of considerable importance when carrying out the balancing exercise in article 8. As Parliament has now determined where the public interest lies in cases of automatic deportation, that factor must be taken into account together with the Tribunal's own assessment of the seriousness of the offence. The gravity of criminal offending will normally be clear from the facts and nature of the offence, the views expressed by the sentencing judge and, importantly, the actual sentence.
This is an appeal by the Secretary of State against the decision of the First-tier Tribunal allowing MK's appeal against the decision made on 3 February 2010 to make a deportation order against him as a foreign criminal within s.32(1) of the UK Borders Act 2007. In this determination we will refer to the parties as before the First-tier Tribunal, MK as the appellant and the Secretary of State as the respondent.
The appellant is a citizen of the Gambia born on 18 August 1983. He came to the UK in 1986 with his mother to join his father who had been studying here since September 1985. Further periods of leave to remain were granted until April 1991. The family overstayed and then made an out of time application on 10 August 1994. This was refused and on 11 October 1995 the respondent decided to make a deportation order but in the light of the ill-health of the appellant's father, the family were granted indefinite leave to remain on 6 November 1997.
The appellant has continued to live in the United Kingdom and in 2004 he formed a relationship with his current partner and a son was born on 12 November 2005. The appellant's father has died but his mother and sister still live in this country.
The appellant had a number of criminal convictions before the conviction which gave rise to the decision to make a deportation order. On 6 August 2002 he was convicted at Inner London Crown Court of offences of damaging property, affray and failing to surrender to custody and sentenced to placement in a Young Offender's Institution for a total of twelve months. On 23 July 2004 he was convicted at Tower Bridge Magistrates' Court of possession of cannabis and fined £30 and on 12 September 2008 at Cardiff Magistrates' Court of possessing cannabis and resisting a police officer, being fined for both offences.
On 31 March 2009 the appellant was convicted at Kingston Crown Court of two offences of possessing Class A drugs with intent to supply. When passing sentence, Saunders J said:
“[MK], would you like to stand up please? The court as I am sure you are aware take an extremely serious view of people involved in the supply of Class A drugs. It is peddling in misery and those who are caught doing it I am afraid suffer serious penalties. You are a small scale dealer but you are a street dealer and the number of wraps which were found indicated the level on which you are actually dealing.
You are to an extent at the bottom of the pile of dealers, but nevertheless it is still serious. The tariff for people who deal in Class A drugs and who plead not guilty and get convicted after trial are some six years' imprisonment, in your case, because you pleaded guilty at the very first opportunity – and I give you full credit for that – the sentence is therefore one of four years' imprisonment.”
Following his sentence the appellant was notified of his liability to automatic deportation on 11 June 2009 and given the opportunity of making representations on why he should not be deported. On 3 February 2010 the respondent made a deportation order under the provisions of s.32(5) of the UK Borders Act 2007 (the 2007 Act) in the following terms:
“[MK] is a foreign criminal as defined by Section 32(1) of the UK Borders Act 2007:
The removal of [MK] is, under s.32(4) of that Act, conducive to the public good for the purposes of s.3(5)(a) of the Immigration Act 1971;
The Secretary of State must make a deportation order in respect of a foreign criminal under s.32(5) of the UK Borders Act 2007 (subject to s.32)
Therefore in pursuance of s.5(1) of the Immigration 1971, once any right of appeal under s.82(1) of the Nationality, Immigration and Asylum Act is exhausted, and the said appeal is dismissed, the Secretary of State, by this order, requires [MK] to leave and prohibits him from entering the United Kingdom so long as this order is in force.”
The appellant appealed against this decision on the basis that removal would be in breach of article 8. The Tribunal heard oral evidence from the appellant, his mother and his partner. In his evidence the appellant confirmed that he had been continuously resident in the UK since arriving as a child and had attended primary and secondary school. He then went to Bromley College and Borough College but only for very short periods, dropping out of his courses there. After he completed his time in the Youth Offender's Institution he was not working but signing on. His relationship with his partner began in 2004 and they moved into temporary and then permanent accommodation. He said that he had spent about three months in Cardiff staying with friends in 2008 although his permanent place of residence was with his partner in West London.
It was argued on his behalf that he had spent 23 of his 26 years in the UK and could not reasonably be expected to return to the Gambia, a country with which he had no affiliation save that he and his parents had been born there. He had taken various courses in prison and when asked why he considered he would be unlikely to re-offend, the appellant explained that he wanted to have the chance to live with his partner and he had gone through a difficult phase following the loss of his father.
In her evidence the appellant's mother confirmed that the appellant now had no relatives in the Gambia. Her own mother had died in January 2009 as had the appellant's uncle on 25 December 2009. She said that in effect she had had to bring up her three children single handedly, one was a lawyer and the youngest training to be a social worker. She expressed regrets about the appellant's conviction. The Tribunal finally heard evidence from the appellant's partner who confirmed that she and the appellant had lived together since 2004 and their son had been born in November 2005. She was finding it difficult to cope with her son on her own whilst the appellant was in prison and she said that she would be unable to live in the Gambia. She had been diagnosed as an epileptic shortly after their son was born and had been on medication since then. She had visited the appellant twice in prison but he had discouraged her from visiting more frequently.
The Tribunal found that the appellant had made little of his life in the UK so far. It said that the appellant had drifted after leaving school and did not actively seek employment. It accepted that he had a continuing relationship with his partner and their son but found that there were concerns about the strength of that relationship in the light of the fact that his partner had only visited him in prison on two occasions. It took the view that the appellant and his mother had played down the strength of their remaining connections in the Gambia and that there were extended family members there with whom contact was maintained. So far as the appellant's convictions were concerned, the Tribunal concluded that he had been more active in drug dealing than he had been prepared to admit.
The Tribunal went on to comment that one difficulty it faced was the fact that there was no evidence of any risk assessment of the likelihood of the appellant re-offending or of the risk he might present to the public. It was the appellant's case that the presence of his partner and child would be an inducement for him not to reoffend and that he had now obtained qualifications whilst in prison. The Tribunal found that there was inevitably a likelihood of reoffending but there was no sufficient evidence to determine whether that risk was low, medium or high.
It summarised its findings as follows in paras 44-46 of the determination:
“44. The length of time the appellant has been in the United Kingdom is an important factor in this case. He has spent his formative years here despite our reservation that he has made little of them. He has a relationship although not a particularly strong one. He has a child here. We have concluded there is a likelihood of reoffending but as to the level or risk of this, we are unable to inform ourselves. It was reasonably open to the Home Office to defer making a deportation order...
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