Le (St Vincent and the Grenadines) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice King,Lord Justice Flaux
Judgment Date07 April 2020
Neutral Citation[2020] EWCA Civ 505
Docket NumberCase No: C5/2019/1398

[2020] EWCA Civ 505

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE PERKINS

HU/14291/2017

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice King DBE

and

Lord Justice Flaux

Case No: C5/2019/1398

Between:
Le (St Vincent and the Grenadines)
Appellant
and
The Secretary of State for the Home Department
Respondent

Mikhil Karnik (instructed by Paragon Law) for the Appellant

Zane Malik (instructed by The Government Legal Department) for the Respondent

Hearing date: 19 March 2020

Approved Judgment

Lord Justice Flaux

Introduction

1

The appellant appeals, with permission granted by Sir Ross Cranston on 22 September 2019, against the decisions of the Upper Tribunal: (i) dated 26 September 2018 that the First-tier Tribunal had made an error or law when it allowed his appeal against the decision of the respondent dated 19 October 2017 to make a deportation order; and (ii) dated 6 February 2019 dismissing his appeal against the deportation order.

Background facts

2

The appellant was born in July 1977 as a citizen of the UK and Colonies, a status which ceased when St Vincent and the Grenadines gained independence in 1979. Since then he has been a citizen of St Vincent and the Grenadines. From 4 November 2002 until 22 October 2016, he served as a Royal Marine Commando and as a consequence was exempt from immigration control under section 8(4) of the Immigration Act 1971. He saw active service in Afghanistan and Iraq and was commended.

3

On 28 October 2016, the appellant was convicted of dishonestly making false representations. He tricked an elderly vulnerable woman into allowing him access to her bank account and emptied it of £20,000 to £30,000 for his own use. He was sentenced to 2 years imprisonment.

4

He was notified of his liability to deportation on 14 December 2016. He made submissions and a human rights claim. The respondent refused those submissions and made the decision to deport him from the United Kingdom on 19 October 2017.

5

The appellant has two sons by different relationships. R was born on 29th November 2005. The appellant has had infrequent contact with him. At the time of the second Upper Tribunal hearing in December 2018, he had not seen him since April 2016. The second son D was born on 31 March 2011. On 30 November 2012 the appellant married the child's mother S. Aside from his time on active service and whilst in custody, they lived together as a family. When he was released from custody in February 2018, he resumed cohabitation with S and had daily contact with D. However the appellant and S separated after a few months, since when the appellant's contact with D has been occasional.

6

The appellant appealed the respondent's deportation decision to the First-tier Tribunal, which allowed his appeal on 20 February 2018. The judge held that the effect of his deportation on his children would be “unduly harsh” within the meaning of section 117C(5) of the Nationality, Immigration and Asylum Act 2002 and that his deportation would be a disproportionate interference with his family life.

7

The respondent appealed that decision to the Upper Tribunal with the permission of the First-tier Tribunal. On 28 September 2018, the Upper Tribunal held that the First-tier Tribunal had made an error of law in allowing the appeal on the basis that the judge had failed to show exceptional circumstances or particular problems and matters rendering separation unduly harsh, so as to override the public interest in deporting foreign criminals as set out in section 117C(1) of the 2002 Act. The Upper Tribunal set aside the decision of the First-tier Tribunal and directed that the case be decided again in the Upper Tribunal.

The Decision of the Upper Tribunal under appeal

8

The Upper Tribunal heard the case again on 13 December 2018. The judge heard evidence from the appellant, S and the appellant's current partner CW and from C, someone who had employed him. In his Decision and Reasons promulgated on 6 February 2019, the judge said that he considered the evidence given to be truthful. He made findings of fact as summarised at [2] and [5] above. In relation to S's evidence the judge recorded that she said that D did not want to see his father but wishes to be kept in touch. She said that a time will come when he will want to see his father.

9

The judge noted at [14] that the difficulty he faced was that Parliament had decided that the public interest lies in deporting people who are foreign criminals and the claimant was a foreign criminal. He considered first the position under section 117C saying the only relevant consideration was whether it would be unduly harsh on the sons for their father to be deported. So far as R was concerned, the position was straightforward. He had no contact with his father and had not had for some time. The deportation would bring to an end the prospect of anything being re-established except possible long-distance contact, but that was more than exists at present. There was no basis for saying the effect on R would be unduly harsh.

10

D was in a different position. He had suffered the uncertainties of being a military child and having his father come back into his life then go away again after a short time. The judge considered it would be in his best interests to continue to have a relationship with his father, which would settle down into fruitful occasional contact. Removal would mean little prospect for a meaningful close relationship. However, there was no basis for saying removal would have unduly harsh consequences for the child. The judge said disruption of close relationships is the natural consequence of deportation and there was nothing here which aggravated the harm or made it particularly difficult.

11

The judge then considered the Military Covenant, upon which Mr Karnik, who appeared for the appellant as he did before this Court, placed particular reliance, noting that it extends to the families of those who serve. The judge said that he inclined to the view that the gambling habit which lay behind the appellant's criminal behaviour was connected in some way with his unpleasant experiences whilst serving in the Armed Forces. However, Parliament had not made any statutory exception for members or former members of the Armed Forces involved in deportation and nothing in the statute that said their families were entitled to special consideration. He made the point that the respect everyone has for the Armed Forces is diminished if someone commits a serious offence like the appellant had.

12

The judge took account of the favourable probation report and favourable military material which showed that the criminal behaviour was by no means the extent of his personality and character. However, the judge could not agree that the military connections amount to compelling compassionate circumstances. He was confident that the Crown Court judge would have thought very carefully before sentencing the appellant about his military service and possible reasons for offending, as he referred to and commented on it. The judge said that, by reason of the sentence, the appellant was subject to “automatic deportation” and his military service was not a weighty factor.

13

The judge repeated again the family circumstances and how the appellant could not show that the effect of his deportation was unduly harsh on his close relatives. The other factors in the case did not save the day. The judge looked at all matters in the round and said that whilst it was difficult to say that anything was irrelevant for the purposes of the Article 8 balancing exercise, the statutory criteria dominated his analysis, leading him to dismiss the appeal.

The legal framework

14

Sections 32 and 33 of the Borders Act 2007 concerning automatic deportation of foreign criminals and the exceptions to automatic deportation are familiar and do not require repetition here. Section 117A(2)(b) of the Nationality Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, provides that, in considering the public interest question, in cases concerning deportation of foreign criminals, the court or tribunal must in particular have regard to the considerations listed in section 117C. That provides as follows:

117C Article 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.

(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.

(4) Exception 1 applies where—

(a) C has been lawfully resident in the United Kingdom for most of C's life,

(b) C is socially and culturally integrated in the United Kingdom, and

(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.

(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.

(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in...

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4 cases
  • Upper Tribunal (Immigration and asylum chamber), 2020-09-01, PA/09578/2017
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 1 September 2020
    ...Kingdom upon the appellant being deported to Iraq. In LE (St Vincent and the Grenadines) v Secretary of State for the Home Department [2020] EWCA Civ 505 Flaux LJ held at [16]: “16. Subsequent decisions of this Court have emphasised that "unduly harsh" requires the court or tribun......
  • Upper Tribunal (Immigration and asylum chamber), 2021-07-27, HU/19811/2018
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 27 July 2021
    ...threshold of unduly harshness was reiterated in LE (St Vincent And the Grenadines) v The Secretary of State for the Home Department [2020] EWCA Civ 505 (which predates HA Iraq). At paragraph 16 the Court of Appeal stated: Subsequent decisions of this Court have emphasised that "unduly ......
  • Upper Tribunal (Immigration and asylum chamber), 2020-07-30, PA/09273/2017
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 30 July 2020
    ...‘unduly harsh’. Mr Jarvis relied on the case of LE (St Vincent And the Grenadines) v The Secretary of State for the Home Department [2020] EWCA Civ 505 in submitting that the ‘unduly harsh’ test was a high one and that the normal impact of separation on a partner or child was not sufficient......
  • Upper Tribunal (Immigration and asylum chamber), 2021-08-05, HU/07184/2019
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 5 August 2021
    ...The grounds to this Tribunal refer to what is said in LE (St Vincent and the Grenadines) v Secretary of Ste for the Home Department [2020] EWCA Civ 505 about the need to show something going “beyond the degree of harshness which would necessarily be involved for any child or partner of any ......

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