The Secretary of State for the Home Department v Andrew Luke Quarey
| Jurisdiction | England & Wales |
| Judge | Lord Justice Irwin,Lord Justice Briggs,Lord Justice Jackson |
| Judgment Date | 08 February 2017 |
| Neutral Citation | [2017] EWCA Civ 47 |
| Docket Number | Case No: C5/2014/4181 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 February 2017 |
[2017] EWCA Civ 47
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Dawson and Upper Tribunal Judge O'Connor
DA/02215/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Jackson
Lord Justice Briggs
and
Lord Justice Irwin
Case No: C5/2014/4181
Mr M Gullick (instructed by Government Legal Department) for the Appellant
AQ appeared in person
Hearing date: 26 January 2017
Approved Judgment
Introduction
This is an appeal from the decision of the Upper Tribunal, Immigration and Asylum Chamber, made on 1 October 2014. The Upper Tribunal "reluctantly" dismissed the Secretary of State's appeal from the decision of the First Tier Tribunal made on 29 October 2013. The appeal proceeds by way of permission of McFarlane LJ, given on 21 January 2016. The Respondent is a "foreign criminal" within the meaning of United Kingdom Borders Act 2007. The Grounds of Appeal by the Secretary of State are firstly that when assessing whether deportation was proportionate under Article 8 of the European Convention, the FTT failed to have regard to the Parliamentary source and the nature of the State's policy in favour of deportation, and secondly that the FTT failed to "engage meaningfully" with the threefold criteria, or facets of public interest, in deportation set out in authority, namely the risk of re-offending, the need for deterrence and public revulsion in relation to serious criminal activity. For those reasons, it is said the Upper Tribunal should have allowed the appeal.
These proceedings have taken too long. The FTT hearing was on 24 March 2014 and the Tribunal's decision was promulgated on 9 April. The Upper Tier Tribunal sat on 22 September and promulgated their determination on 1 October 2014. Thus far, the matter proceeded with reasonable speed. However, there was some delay before the Secretary of State sought to appeal the decision. A re-sealed and amended Appellant's Notice and Grounds was filed and served in February 2015. Permission was refused by Sullivan LJ on 10 April 2015. Following a fire affecting the Appellant's office, it was 10 June 2015 before a renewal application was filed. Permission to appeal and an extension of time was granted by MacFarlane LJ on 21 January 2016. A hearing date was set in late July but the Secretary of State applied to vacate the date and adjourn the hearing, an application then supported by the Respondent. It is by that route that the appeal comes to be heard two years and ten months after the FTT decision, and yet based on evidence from that time.
The Facts
The Respondent was born in Jamaica on 14 July 1970. He came to the United Kingdom on a six month visit visa on 21 November 2001, and therefore at the age of 31. He did not leave the UK when his visa expired.
In 2004, the Respondent met his former partner Natasha Pennant, and their child Nariah was born on 7 May 2005. The Respondent and Ms Pennant separated during 2005.
At the end of that year, the Respondent formed a relationship with Simone Ramsay and they began living together in March 2006. Ms Ramsay had another child with a different father, named Ashley Edwards. Ashley was born in 2001. In addition, Ms Ramsay has the care of her nephew, Javanie Morris, the son of her deceased sister. Javanie was born in 2004. On 27 June 2008, Ms Ramsay gave birth to the Respondent's daughter, Shaniqua. It was not in issue before the FTT that the Respondent treated all three children as his own and was "an active parent to them".
The FTT had letters from the deputy head of the children's primary school and from a representative from the Haringey Council Children and Young People's Service, attesting the Respondent's close relationship with the children and the negative impact of his removal to prison.
Ms Ramsay is herself of Jamaican nationality. She came to the UK as a visitor in February 2000 and remained here after the expiry of her six months visitor's visa. She attempted, but failed, to get an extension of leave as a student. In 2007, Ms Ramsay applied for leave to remain on the basis of seven years' residence of her daughter Ashley. Ms Ramsay, Ashley and Javanie were all given discretionary leave to remain. Ashley became a British citizen in 2012.
On 17 July 2008, the Respondent applied for leave to remain in the United Kingdom. The Secretary of State refused his application in December 2009. The Respondent appealed and his appeal was dismissed by Immigration Judge Drabu in April 2010. At that hearing the judge found many aspects of the Respondent's evidence to be inconsistent and conflicting. The Respondent was then claiming to be the sole carer of his daughter, Nariah. The Immigration Judge found that evidence to be "hugely exaggerated". It was accepted that the Respondent had established a family life, but it was held not to be disproportionate to remove him. That decision was upheld by Upper Tribunal Judge Sommerville on 23 November 2010.
As must be clear, the Respondent did not leave the United Kingdom.
The FTT recorded some of the details of the Respondent's offending. He was convicted of possessing cocaine and heroin on 2 November 2011. According to the remarks of the sentencing judge on the later occasion in 2013, he had in his possession "no less than 65 wraps of Class A drugs" but was nevertheless not prosecuted for possession with intent to supply. He received modest fines.
The Respondent was arrested on 26 October 2012 in Camden High Street. The sentencing remarks in relation to this offending confirm that he had 36 wraps of heroin and 27 wraps of crack cocaine. In interview, he acknowledged that he had been dealing in drugs "for about a year". He was sentenced on the basis that he was a street dealer in drugs. On 12 February 2013, he was sentenced to 36 months' imprisonment on each count concurrent. The Respondent was serving his sentence at the time of the hearing before the FTT.
The Appellant's reasons for the decision to deport were set down in a decision letter of 29 October 2013. He was liable to automatic deportation under the provisions of Section 32(5) of the UK Borders Act 2007 and did not fall within any of the exceptions under Section 33. The Secretary of State did not accept that the Respondent had any family life with his biological daughter, Nariah. It was accepted that he was "in a genuine and subsisting parental relationship" with his daughter Shaniqua, and was living with her in a family unit prior to his conviction. It was, however, regarded as reasonable for the Respondent's daughter to accompany him to Jamaica if her (Jamaican) mother chose to accompany him back there. The Secretary of State also accepted that the Respondent was in a genuine and subsisting parental relationship with Javanie and Ashley. It was considered that it would be reasonable for Javanie to accompany the Respondent to Jamaica if Ms Ramsay chose to return there with him. It was noted that Javanie had special learning and behavioural needs but "there are educational facilities to deal with this in Jamaica". Ashley being a British citizen, the Secretary of State accepted that it would be unreasonable to expect her to accompany the Respondent to Jamaica. However, her father "or another relative" could care for her in the UK. After considering the Respondent's relationship with Ms Ramsay, the Secretary of State concluded that there would be no undue hardship if the Respondent were to be deported since she could accompany him there or, in the alternative, remain in contact and visit regularly. For those reasons, the Secretary of State concluded that the public interest in the Respondent's deportation outweighed the Respondent's rights to family life under Article 8.
The Decision of the FTT
Given the attack mounted by the Appellant on the decision, it is necessary to look at the route by which the FTT reached their conclusions. Having recited the facts and the submissions of the parties, the FTT began with the provisions of the UK Borders Act 2007. They noted that there was a requirement on the Secretary of State to make a deportation order under Section 32(5), thus drawing attention to the statutory basis of the obligation, enshrining the authority of Parliament over this public policy. The Tribunal noted the provisions relating to deportation set out in Part 13 of the Immigration Rules, in the form then current. They did so in the following terms:
"26. We must say at the outset that the law relating to deportation has become a very complex field of law most particularly in cases (such as this one) where there are difficult balancing factors to assess. We shall approach our decision firstly by setting out the relevant law and then we shall seek to apply it to the particular facts (as found by us).
27. There are now detailed provisions relating to deportation set out at Part 13 of the Immigration Rules. Paragraph 398 refers to three types of case where a person claims that his deportation would violate his Article 8 rights. In the case of this Appellant, the Respondent relies on 398(b) namely that the "deportation is conducive to the public good because the Appellant has been convicted of an offence for which he has been sentenced to a period of imprisonment of at least 12 months". The Immigration Rules provides that in such a case, then, unless paragraph 399 or 399A applies, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors. For the reasons set out in the refusal letter, the Secretary of State considers that neither 399 nor 399A applies to this Appellant. We agree with the Secretary of State. His...
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