Secretary of State for the Home Department v PG (Jamaica)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde,Lord Justice Hickinbottom,Lord Justice Floyd |
| Judgment Date | 11 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1213 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2018/1419 |
| Date | 11 July 2019 |
[2019] EWCA Civ 1213
Lord Justice Floyd
Lord Justice Hickinbottom
and
Lord Justice Holroyde
Case No: C5/2018/1419
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Finch
HU/00029/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Gwion Lewis (instructed by Government Legal Department) for the Appellant
William M Rees (instructed by Chris & Co Solicitors) for the Respondent
Hearing date: 26th June 2019
Approved Judgment
An anonymity direction has been given in respect of the respondent to this appeal. I shall refer to him as “PG”, and I shall similarly use initials when referring to other persons connected to him.
PG, a citizen of Jamaica now aged 43, came to the United Kingdom on 31 st March 2002. On 11 th March 2015 the Secretary of State for the Home Department (“the Secretary of State”) made a deportation order against him. PG appealed against that decision to the First-tier Tribunal (“FtT”). In a decision promulgated on 11 th September 2017 First-tier Tribunal Judge Griffith (“Judge Griffith”) allowed his appeal. Judge Griffith's decision was upheld by Upper Tribunal Judge Finch (“Judge Finch”) in a decision promulgated on 24 th January 2018. The Secretary of State now appeals, by permission of Sir Stephen Silber, against the decisions of Judge Griffith and Judge Finch.
At the hearing of the appeal, the Secretary of State was represented by Mr Gwion Lewis and PG was represented by Mr William Rees. I am grateful to them both for their written and oral submissions.
The Facts
PG was 26 years old when he came to the United Kingdom. He was then the father of two children, who have remained in Jamaica. He was initially granted leave to enter as a visitor for six months. He was subsequently granted limited leave to remain as a student, that period of leave being extended on a number of occasions, but ultimately expiring on 30 th November 2007. In 2007 he was given permission to marry, and did marry, NE.
In addition to his two children, now adults, who have remained in Jamaica, PG is the father of six children who have been born in the United Kingdom and are British citizens. With his present partner, SAT, he has three sons, now aged 15, 10 and 3. I shall refer to the oldest as “R”. PG also has two sons by his former wife NE, and a daughter by another woman: all three of these children are now aged between 10 and 13. In recent years PG has lived with SAT and their three sons, and he has maintained contact with his other three British-born children.
Whilst in this country, PG has committed a number of offences relating to controlled drugs. On 7 th November 2007 he was cautioned for possession of cannabis. On 16 th May 2008 he was fined by a magistrates' court for possession of cocaine and cannabis. On 10 th June he was again fined by a magistrates' court for possession of cannabis. On 20 th May 2009 he was given a conditional discharge by a magistrates' court for obstructing a search for drugs. On 22 nd July 2009 he was convicted in the Crown Court of four offences of supplying controlled drugs of class A, the charges relating to crack cocaine, cocaine (two offences) and heroin. He was sentenced to a total term of three years, four months' imprisonment. From the limited information available to this court, it appears that the judge who imposed that sentence accepted that PG had been supplying controlled drugs in order to fund his own drug habit.
PG has committed further offences since his release from that sentence. On 13 th May 2013 he was again cautioned by a magistrates' court for possession of cannabis. On 6 th February 2014 he was given a conditional discharge by a magistrates' court for possession of cannabis. On 9 th December 2015 a magistrates' court imposed a fine, and a period of disqualification from driving, for an offence of failing to provide a specimen of breath for analysis.
PG's criminal offences led to the making of the deportation order against him.
The Deportation Order
A deportation order against PG was first signed on 20 th January 2011. However, PG successfully appealed against that order, and it was revoked on 26 th September 2011. It is unnecessary to say more about it. PG was then granted discretionary leave to remain, on grounds relating to article 8 of the European Convention on Human Rights (“the Convention”), until 29 th March 2012. Shortly before the expiration of that period he applied for further leave to remain, again on article 8 grounds. That application was ultimately refused by the Secretary of State on 11 th March 2015.
The deportation order with which this court is concerned was signed by the Secretary of State on 11 th March 2015. On that same date the Secretary of State sent a detailed decision letter to PG, explaining that his human rights claim had been refused. The letter stated that PG's deportation was required by section 32(5) of UK Borders Act 2007 unless he could demonstrate that he came within one of the statutory exceptions. It summarised his offending history. It indicated that the Secretary of State accepted that PG had a genuine and subsisting parental relationship with his (then) two sons by SAT, albeit that PG was not then living with them or their mother. The Secretary of State did not however accept that there was a genuine and subsisting relationship with SAT. Nor was it accepted that PG had a genuine and subsisting parental relationship with his other three British-born children. The Secretary of State concluded that it would not be unduly harsh for the two sons either to move to Jamaica with their mother SAT and father, or to remain in this country with their mother but without PG. So far as PG himself was concerned, the Secretary of State accepted that there had been some delay in dealing with his case but concluded there were no very compelling circumstances to outweigh the very significant public interest in deporting him. The conclusion in relation to article 8 was that deportation of PG would not breach the UK's obligations under that article, because the public interest in deporting him outweighed his right to private and family life.
PG's appeal against the deportation order was first considered by the FtT in a decision promulgated on 24 th September 2015. That decision was however subsequently set aside, on grounds of error of law, in a decision of the Upper Tribunal promulgated on 1 st May 2017. It is unnecessary to refer to the detail of that decision: it suffices to say that the case was remitted to the FtT, to be heard again by a different judge. So it was that the matter came before Judge Griffith at a hearing on 22 nd August 2017.
Both PG and SAT gave oral evidence at that hearing. They both gave evidence of the strength of the relationship between themselves, and between PG and their three sons. Both said that deportation of PG would seriously affect the children. PG was not permitted to work, but SAT was working and studying, and both said that she would not be able to cope on her own. PG spoke of a recent incident concerning R, when “a knife had been pulled on him”, after which PG had spoken to the parents of the perpetrator. He said that the children needed him to guide and protect them, and said that he did not wish them to become involved with crime. He referred to his offences in 2013 and 2014 as involving cannabis for personal consumption, and said that since that time he had “addressed his habit and it is no longer a problem for him”. SAT said that PG was a changed man in recent years, and “is not involved in drug taking except cannabis”. Neither PG nor SAT had initially mentioned his 2015 conviction for an offence of failing to provide a specimen for analysis: when asked about this, both said that they did not think it was a criminal conviction and therefore had not thought it relevant.
The decision of Judge Griffith
In her reasons and decision promulgated on 11 th September 2017, Judge Griffith summarised PG's immigration history and history of offending. She recorded that the Secretary of State's representative had accepted that PG had a genuine and subsisting relationship with SAT and with their 3 children. Judge Griffith also noted PG's “regular, though infrequent” contact with his other children in this country. Judge Griffith noted that the issue was whether it would be unduly harsh for the children and/or for SAT either to move to Jamaica with PG if he were deported, or to remain in the UK without him. In this regard she considered Immigration Rules paragraph 399, section 117C of the Nationality, Immigration and Asylum Act 2002, and the cases of MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450 (hereafter, “ MM (Uganda)”) and Hesham Ali (Iraq) v Secretary of State for the Home Dapartment [2010] UKSC 60. She said that the first of those cases required her to consider all the circumstances, including PG's immigration and criminal history, and the second stated that only a very strong article 8 claim would outweigh the public interest in deportation.
Judge Griffith accepted that it was for the Secretary of State to decide which part of PG's criminal record should be relied on in support of making a deportation order. The decision letter made clear that the Secretary of State had relied on all of PG's offending, and not merely on the most serious conviction of 22 nd July 2009. Judge Griffith accepted that both PG and SAT had genuinely misunderstood the 9 th December 2015 conviction, and did not draw any adverse inference from their failure to mention it. She said, however, that she could not ignore the fact that PG had been convicted of that offence, in addition to his...
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