Secretary of State for the Home Department v Luis Enrique Reyes Garzon
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Sales |
| Judgment Date | 25 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1225 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2016/1320/AITRF |
| Date | 25 May 2018 |
[2018] EWCA Civ 1225
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)
UPPER TRIBUNAL JUDGE FRANCES
DA/00340/2014
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Sales
Case No: C5/2016/1320/AITRF
Catherine Rowlands (instructed by Government Legal Department) for the Appellant
Gordon Lee (instructed by Lawrence & Co Solicitors) for the Respondent
Hearing dates: Thursday 10 May 2018
Judgment Approved
On 6 February 2014 the respondent, a citizen of Colombia who arrived in the UK in October 1978 when aged 11 and who has resided here for nearly 40 years since that date, was served with a deportation order. His appeal against that order was allowed by the First Tier Tribunal (Judges Gibb and Beach) in July 2015. The Secretary of State's appeal against the FTT decision was dismissed by the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Frances) on 12 January 2016. The Secretary of State now appeals against the tribunal decisions, permission for a second appeal having been granted by Lord Justice Elias in February 2017.
The tribunal decisions and the issuing of the present appeal occurred at a time prior to the UK Supreme Court's decision in the case of Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] 1 WLR 4799 which aimed to provide clarity with respect to the law relating to the deportation of foreign criminals.
This appeal, therefore, in common with a number now coming before this court, whilst issued at a time when the law relating to deportation may not have been entirely clear, now falls to be determined in the light of the Supreme Court decision in Hesham Ali together with subsequent related decisions of the Court of Appeal.
As counsel for the Secretary of State, Miss Catherine Rowlands, conceded, the point of law now relied upon by the Secretary of State is in reality a perversity challenge to the FTT determination on the basis that the particular factual elements of the present case were incapable, either individually or taken together, of establishing the “very compelling circumstances” relating to the European Convention on Human Rights, Article 8 sufficient to justify the otherwise automatic deportation of a foreign criminal who has been sentenced to a period of between 12 months and 4 years imprisonment as required by Nationality, Immigration and Asylum Act 2002 (“NIAA”), s.117C and Immigration Rules, r398, 399 and 399A.
In the circumstances, save for asserting an error in the tribunal's application of the law to the facts of this case, this appeal does not raise any point of law for determination. My Lord and I, having read the papers in the case and heard the oral submissions of Miss Rowlands on behalf of the appellant, and without calling upon Mr Gordon Lee on behalf of the respondent, formed the clear view that the appeal could not succeed. In the circumstances, this is a short judgment, prepared in accordance with the current practice of this court.
Factual background
Although the FTT considered a substantial body of written and oral evidence at a hearing conducted over the course of 3 days, the relevant factual background can be stated shortly.
The respondent arrived in the UK in October 1978 at the age of 11 years and, thereafter, remained here having been granted, on two occasions, leave to remain. In 1987 he was sentenced to 3 years imprisonment for possession of a controlled drug with intent to supply. Between 1987 and 2010 he received 8 convictions for 11 offences made up of offences against the person, public order offences or offences relating to the police or justice system. On 17 September 2010 he was convicted of an offence of wounding with intent to do grievous bodily harm and was sentenced to a period of 45 months imprisonment. It was this latter period of imprisonment which triggered the Home Secretary's decision to order his deportation.
In addition to the history of previous convictions, the FTT heard evidence and considered police intelligence reports as to the respondent's general level of criminality, albeit that that behaviour did not lead to any specific criminal conviction. Having considered that evidence the FTT concluded (at paragraph 111):
“From the evidence before us, we find that it is likely that the appellant has been involved in criminal activities in the past for which he was not arrested or charged. The appellant's criminal convictions suggest an individual who has been involved in a criminal and somewhat chaotic lifestyle but also an individual who has, to some extent, been able to hide this from his family.”
The FTT considered evidence as to the state of the relationship between the respondent and his only child, a daughter, who was then aged 15 years. The respondent did not live with his daughter or her mother, and there was conflicting evidence as to the amount of contact he had with her. On this element the FTT concluded (at paragraph 116):
“We were left with very little evidence to substantiate the contact which the appellant states he has with his daughter and there was little, if any, evidence of any real involvement in his daughter's life. We find that there was insufficient evidence to show that the appellant has a genuine and subsisting parental relationship with a British national child.”
Thereafter, the FTT made no further reference to the respondent's relationship with his daughter in the course of the Article 8 analysis that was conducted.
The evidence showed that the appellant had visited his home country of Colombia from time to time and the FTT concluded, within the context of NIAA 2002, s.117C(4)(c) that the respondent had failed to establish that there were “very significant obstacles” to his reintegration to Colombia were the deportation order to stand.
A further factor before the FTT related to the relationship that the respondent had established with his current partner following his release from prison. The tribunal accepted that this was “a strong relationship”.
The final two factors considered by the tribunal are of central relevance in the context of this appeal because, in addition to the relationship with his partner, they formed the basis of the tribunal's conclusion on the issue of “very compelling circumstances” justifying a decision not to deport.
The first factor relates to evidence of the respondent's rehabilitation in the 5 years, as the period then was, following his conviction in 2010 and, secondly, the time that the respondent had spent living in the UK and the degree of integration that he had with family members, and the community more generally, here. The tribunal's findings on these two points are at paragraphs 120 and 121 as follows:
“120. The appellant has not come to the attention of the police for almost 5 years. His last conviction was in 2010 and there was no recent police intelligence to suggest that he had committed any further offences since that date. The appellant and his family all talk of the appellant being a changed man since his last offence. The appellant is in employment and has a new relationship with an Italian national. The appellant showed insight into his offending and was able to express how he felt that he had changed and how he now deals with aggressive or violent situations. The Judge's sentencing remarks noted that the appellant went far above what was required for self defence hence his conviction for section 18 wounding. The appellant's reaction to such events has markedly changed since his conviction but perhaps of most importance is the fact that the evidence is that the appellant has removed himself from his previous chaotic lifestyle. There was no evidence of such a lifestyle before us now and the appellant's partner's evidence was particularly compelling in this regard.
121. The appellant has lived in the UK for over 30 years. Although he has visited Colombia, he would, in effect, be a stranger to life in Colombia given his length of time in the UK and the strength of his connections to the UK. He spent the majority of his formative and all of his adult years in the UK and is integrated into UK life. His primary language is English and he has studied and worked in the UK. All of his close relatives are in the UK including his parents and a brother with whom the appellant has a close relationship. They are very supportive of the appellant and have remained supportive of him despite his convictions. The appellant's partner is also supportive and hopes to marry the appellant in the future. She is working in the UK running her own business and as a freelance tutor.”
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