R (on the application of Carlos Llewlyn Lyneous Cyrus) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Irwin |
| Judgment Date | 26 April 2016 |
| Neutral Citation | [2016] EWHC 918 (Admin) |
| Docket Number | Case No: CO/368/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 April 2016 |
[2016] EWHC 918 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Irwin
Case No: CO/368/2016
Ms Leonie Hirst (instructed by Asylum Aid) for the Claimant
Mr Tom Poole (instructed by The Government Legal Department) for the Defendant
Hearing dates: 19 April 2016
Introduction
In this case the Claimant seeks interim relief as part of a claim for judicial review. The Order sought is an Order that the Defendant should grant or reinstate the Claimant's indefinite leave to remain ["ILR"] in the UK pending the resolution of his claim and his anticipated appeal against a decision of 8 April 2016 to refuse his human rights claim of 19 August 2015 and to maintain the decision to deport the Claimant from the United Kingdom
The Facts
The Claimant was born in London on 1 October 1994. His mother was a Jamaican national and his father a national of Grenada. They were unmarried. According to the Defendant, neither had settled immigration status in the United Kingdom at that time.
The Claimant continued to live in London, and indeed has never left the country. On 12 January 2005, the Claimant's mother and the Claimant were granted ILR.
On 11 December 2007, the Claimant was convicted of aggravated vehicle taking, two offences of common assault, robbery, attempted robbery and using a vehicle whilst uninsured. He was sentenced to an eight months Detention and Training Order.
The Claimant had become involved with a gang. At the age of 12 in 2007, he was party to the homicide of a supposed member of a rival gang. On 5 January 2009, he was convicted of manslaughter following a trial at the Central Criminal Court. On 21 April 2009, he was sentenced to 11 years' detention, comprising a seven year custodial term and an extended licence of 4 years. His conviction and sentence were upheld on appeal during the following year.
The Claimant was released on licence in August 2011 but recalled in January 2012 for breaching the licence conditions. He was again released on licence in July 2012 but was recalled to prison for breaching his licence conditions. According to the information set out in the Defendant's GCID case record sheet:
"Between 20 April 2014 and 16 July 2015, [the Claimant] was reprimanded on seven separate occasions at HMP Feltham for "negative behaviour" of various kinds."
On 4 August 2015, the Parole Board recommended the Claimant's release.
On 18 August 2015, the Claimant was served with a Notice of Decision to make a Deportation Order and on the following day the Claimant responded by making representations why he should not be deported based on his Article 8 rights in the United Kingdom.
On 26 August 2015, his custodial sentence came to an end and he was detained under Schedule 3 of the Immigration Act 1971.
The Claimant's representations were recorded and considered by officials acting for the Defendant in the following terms:
"He has provided a letter dated 19 October 2015, detailing his private life in the UK. Mr Cyrus has never left the UK and does not have a passport. He claims all his family members are in the UK. He was granted ILR along with his mother and sister back in 2005. It is considered that his family members in the UK do not rely on him or him on them for his stay in the UK.
It is plausible to accept that he has established a private life as a result of him being born in the UK. He was educated in the UK and has attended infant, primary and senior school (although he was expelled). From the age of 12 and maybe younger, he has been associated with gang life culture and was convicted at a young age of Manslaughter for which he received a long sentence. He has been offending from a very young age. Although the Parole Board recommended him for release, they considered that he continued to pose a high risk of harm to others. They considered that his release at this stage "not without risk".
Mr Cyrus has been resident in the UK all of his life and certainly this would bring him within Article 8 of the ECHR. However, he has not demonstrated that the UK interference with his right is disproportionate. There are no compelling compassionate circumstances to be considered in this case.
It is further noted that there are no obstacles preventing him from continuing to enjoy his "private life" outside of the UK. Mr Cyrus does not have any children or a partner in the UK and has not demonstrated that he is financially independent. Therefore it is not considered unduly harsh for him to be deported to Jamaica.
Although he has not travelled to Jamaica, he is a young man who is healthy. It is considered that he has been brought up to be familiar with the culture and life of Jamaica. It is also believed that no language barrier exists given that English is the official language spoken there, notwithstanding Patwa is widely spoken there also.
Furthermore in his letter dated 19 October 2015, he states that he has the potential to become a football mentor and/or coach. It is considered that the skills and experience he has gained in the UK could assist him in re-establishing himself in Jamaica and could help you secure employment there.
In view of the above information, it is submitted that there will be no breach of the UK's obligations under Article 8 of the ECHR in this case if we decide to pursue deportation against him."
The Home Office case worker recorded the conclusions that the Claimant was not "socially and culturally integrated into the United Kingdom because he has not provided any evidence to show that he has made a positive contribution to society" and the nature of his crime warranted his deportation. The recommendation went on to suggest there would not be "very significant obstacles to the foreign criminal's integration" in Jamaica. The interference with the Claimant's private life was not disproportionate and the case was suitable for certification under Section 94B of the Nationality and Immigration Act 2002. The recommendation proceeded:
"He will be afforded an "out of country right of appeal and there is no real risk of serious irreversible harm" before the appeal process is exhausted should Mr McLean ( sic) decide that he wishes to appeal."
That recommendation is dated 21 October 2015.
The recommendation was endorsed by a more senior official on 26 October 2015. This was the date of effective decisions taken on behalf of the Home Secretary. The decision to pursue deportation action was approved in the light of the "extremely serious conviction for manslaughter". It was noted that there was:
"…more scope in this case for rehabilitation … given that Mr Cyrus was 14 years old upon conviction and is now aged 21. However it is also noted that he was recalled to prison for multiple breaches of licence … His probation report states that he subsequently also committed a number of adjudications … in custody. It appears clear that Mr Cyrus still poses a high risk of harm to the public and that his deportation is justified and in the public interest."
In recording his reasoning, this official acting for the Defendant noted in similar terms to the case worker that the Claimant was born in the UK and "claims to have no experience of life in Jamaica". However, he spoke English and had inherited cultural ties from his mother, was a healthy adult and could readjust to life abroad.
The decision-maker went on in the following terms:
"I have considered the appropriateness of certification and have concluded that Mr Cyrus has not shown that he or his family members would come to serious irreversible harm were he to be deported and then pursue an appeal from abroad. Therefore, notwithstanding his birth in the UK it is considered that he should be afforded an out of country right of appeal under Section 94B of the NIA Act 2000."
The deportation order bears the date 26 October and the Notice of Decision, including certification pursuant to Section 94B is dated 28 October. Both were communicated to the Claimant under a letter of 28 October. At one point the slight discrepancy in dates was said to be relevant, but no longer.
The decision on certification followed the approach laid down in the guidance then available to case workers:
"The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that the person would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which he is proposed to be removed…. The Secretary of State has considered whether there would be a real risk of serious irreversible harm if he were to be removed …. The Secretary of State does not consider that such a risk exists."
The Claimant made further representations on 10 December 2015. Judicial Review proceedings were issued on 25 January 2016. The deportation order is said to be unlawful by reference to the Claimant's Article 8 rights. The decision to certify is said to be unlawful, principally because the Defendant failed to apply the correct test. In addition, there is a claim for unlawful detention as a consequence.
The Claimant was released from detention on 7 March 2016, and on 16 March 2016 the Defendant notified the Claimant of an intention to reconsider the decision to deport and that any appeal would be permitted to be heard in-country.
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