The Secretary of State for the Home Department v Michael George Boyd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Stanley Burnton,Lord Justice Briggs,Lord Justice Elias
Judgment Date19 November 2015
Neutral Citation[2015] EWCA Civ 1190
Date19 November 2015
Docket NumberCase No: C5/2014/3193

[2015] EWCA Civ 1190

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Elias

Lord Justice Briggs

and

Sir Stanley Burnton

Case No: C5/2014/3193

Between:
The Secretary of State for the Home Department
Appellant
and
Michael George Boyd
Respondent

Richard Moules (instructed by the Treasury Solicitor) for the Appellant

Jacques M. Rene (instructed by Just & Brown Solicitors) for the Respondent

Hearing dates : 29 October 2015

Sir Stanley Burnton

Introduction

1

On 2 April 2013 the Secretary of State made a deportation order in respect of the Respondent, Michael Boyd, under section 32 (5) of the UK Borders Act 2007. The Respondent appealed against that order under the Nationality, Immigration and Asylum Act 2002 to the First-Tier Tribunal, on the ground that his removal would infringe his rights under Article 8 of the European Convention of Human Rights. The First-Tier Tribunal allowed his appeal. The Secretary of State appealed to the Upper Tribunal, which dismissed her appeal. This is the Secretary of State's appeal against the determination of the Upper Tribunal. She brought this appeal by leave of the single judge, who extended her time to appeal.

2

At the conclusion of the hearing, the Court announced its decision to allow the appeal, with result that the deportation order stands.

3

This judgment sets out my reasons for allowing the appeal.

The facts

4

The Respondent is a citizen of Jamaica. He arrived in this country on 25 December 1999. He was given leave to enter as a visitor for a period of six months. He was then aged 11 years. In 2000, his mother made an application on his behalf for a grant of indefinite leave to remain as her dependant. The application was refused in January 2003 and a subsequent appeal was dismissed on 25 March 2005. His appeal rights became exhausted in April 2005. His father, Michael Boyd Senior, had been deported to Jamaica on 3 May 2001 following involvement in criminal conduct, including drug importation.

5

On 31 August 2007, the Respondent was convicted of common assault and sentenced to 3 months' detention in a Young Offenders' Institute. In July 2008, he was convicted of two counts of possessing a Class C controlled drug (cannabis) and one count of possessing a Class A controlled drug (cocaine). He was fined. In September 2008 he was again convicted of possession of cannabis and cocaine, and again fined. On 21 October 2010 the Respondent pleaded guilty at Wood Green Crown Court to an offence of wounding with intent. A sentence of imprisonment for 30 months was imposed. The Judge stated in his sentencing remarks:

"On 15 th May you got into an argument with the complainant… The basis of your argument was that you and your partner had rented a room in his house for some six or seven weeks, difficulties had arisen and he had asked you, as was entitled to do, to leave. He had indicated when the deposit was to be returned to you, namely when you left, and you seem to take exception to that.

What started as a verbal argument in the house in front of others escalated outside. The complainant had left to distance himself from what was going on and it was at that point you went back to your room and deliberately armed yourself with what has been described either as a long knife or a machete. You came out of that house and attacked [the complainant], striking him once to the head without machete or knife. You caused a very serious injury to the head.

The Dr's report shows that the laceration was 15 cm x 3 cm, had cut through all the layers of the skin and caused minor tiny flake fractures of the scalp, of the skull, and had caused arterial damage which was why those treating him found it so difficult to stop the bleeding. There have been complications since and he has been left with a highly visible and permanent T-shaped scar on his head and the psychological consequences of what you did.

Mr Boyd, you've pleaded guilty to a single count of section 20 wounding. You have entered that plea on the morning of your trial knowing the complainant and other witnesses had already attended court."

6

By reason of his conviction for unlawful wounding with intent and his sentence of imprisonment, the Respondent was subject to automatic deportation under section 32 of the UK Borders Act 2007 unless there was an applicable exception under section 33.

7

On 16 December 2010 the Respondent was served with notice of liability to deportation. He then claimed asylum, and that his return to Jamaica would infringe his rights under Articles 2, 3 and 8 of the Convention. By letter dated 5 April 2013, the Secretary of State rejected all his claims. He appealed to the First-tier Tribunal. At the hearing before the First-tier Tribunal, he did not pursue his appeal against the rejection of his claim for asylum, or that under Articles 2 and 3, but restricted his appeal to his claim under Article 8.

The decision of the First-tier Tribunal

8

The Respondent is not living with any partner, and has no children. The First-tier Tribunal set out its reasons for allowing his appeal in paragraphs 53 to 61 of its determination:

"53. By the terms of the Human Rights Act 1998 the public authorities bound to maintain the obligations of this country with respect to those aspects of the European Convention which were incorporated into domestic law. We do of course acknowledge that certain amendments have been made to the Immigration Rules, with effect from 9 July 2012, to bring into the Rules certain provisions directly relating to Article 8 of the European Convention. In that respect paragraph 398 applies to the circumstances of the Appellant, as he received a period of imprisonment of two years and six months. For those reasons paragraphs 399 and 399A of the Immigration Rules do not here apply.

55. Having considered all aspects of this appeal it is a finding of this Tribunal that the Deportation Order does constitute an unlawful breach of the Appellant's Article 8 rights under the European Convention. We now set out our reasons, further to the indication as to the outcome of this appeal which we gave following an adjournment at the end of the hearing.

55. We confirm that we took into account all evidence placed before us, including documentation, which we have detailed above. As summarised above we heard evidence from the Appellant and from four supporting witnesses. Clear submissions were made by both representatives. We have been assisted by the skeleton argument provided by Mr Rene. Of course we have paid careful and particular account to the terms of the Respondent's deportation decision letter which set out the reasons why the Respondent considered that it was appropriate to make a Deportation Order. We also take into account, following the views expressed by the Upper Tribunal in MF Nigeria [2012] UKUT 393 (IAC), that full consideration of the European Convention must take place, with this Tribunal required to undertake a two-stage approach to appeals which include grounds relating to Article 8 of the European Convention but where, nevertheless, amendments are stated to have been made to the Immigration Rules in order to reflect the requirements of the Convention. We have also taken particular account of the decision of the Upper Tribunal in Ogundimu Nigeria (above) which of course refers to other caselaw, including decisions of the European Court of Human Rights, including Masolv v Austria [2008] ECHR 546.

56. We find a number of circumstances to be significant in this appeal. In reaching the decision which we did we considered those factors on a cumulative basis in undertaking the required balancing exercise to assess Article 8 issues. We found there to be no basis to doubt the truth of the evidence given by any witness who appeared before us, including the Appellant. Indeed, the Appellant was particularly frank in admitting to us that he had used cannabis in the relatively recent past, although he expressed that as having been as a result of experiencing stress. We find that the Appellant has a very supportive family. It is very significant that he has been in this country for the length of period which he has. The factual detail in that respect is referred to above. We appreciate that he did not have the benefit of immigration leave but nevertheless we find that because the Appellant has been here since the age of 12 years, his period of time spent in this country is given weight. He has been away from Jamaica since he first came to the United Kingdom. That is a very long period indeed. Although we accept that family life rights could not be considered as engaged for the purposes of Article 8(1) of the European Convention, there being no particular dependence by the Appellant on adult family members in this country, private life rights are most certainly strongly engaged.

57. The stages set out in Razgar must be followed. We find that the potential removal of the Appellant to Jamaica would have consequences of sufficient gravity to engage Article 8 rights. His private life is well-developed in this country. The threshold is relatively low. Of course for an interference with engaged Article 8 rights to be lawful, the same must be necessary in a democratic society. For that to be so the decision and the consequences must be proportionate to the legitimate and lawful aim of the Respondent in discharging her duty with respect to ensuring an appropriate system of immigration control. Accordingly the ultimate test is whether, on the facts, the same is proportionate in all the circumstances. Of...

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6 cases
  • Dasgupta (error of law – proportionality – correct approach)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 3 December 2015
    ...hallmarks of an irrationality challenge. As the Court of Appeal stated recently in Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190, at [16], the question for the appellate court or tribunal in such cases is whether the decision of the first instance tribunal on this i......
  • Upper Tribunal (Immigration and asylum chamber), 2015-12-02, DA/01096/2014
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 2 December 2015
    ...and interests had to be measured. This principle has been reinforced by the Court of Appeal in the more recent judgment in SSHD v Boyd [2015] EWCA Civ 1190 in which the Court set out reference to case law in the following “26. My above remarks would apply to a case that preceded the introdu......
  • Upper Tribunal (Immigration and asylum chamber), 2016-03-04, IA/04448/2015
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 4 March 2016
    ...the Court of Appeal including CG (Jamaica) v SSHD [2015] EWCA Civ 194; SSHD v AQ (Nigeria) and Others [2015] EWCA Civ 250; SSHD v Boyd [2015] EWCA Civ 1190 and SSHD v ZP (India) [2015] EWCA Civ It follows from this line of jurisprudence that a judge will err in law, in determining whether a......
  • Upper Tribunal (Immigration and asylum chamber), 2015-12-11, [2016] UKUT 28 (IAC) (Dasgupta (error of law – proportionality – correct approach))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 11 December 2015
    ...hallmarks of an irrationality challenge. As the Court of Appeal stated recently in Secretary of State for the Home Department v Boyd [2015] EWCA Civ 1190, at [16], the question for the appellate court or tribunal in such cases is whether the decision of the first instance tribunal on this i......
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