T.p, (ap) V. The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Carloway,Lord Philip,Lord Hardie |
| Judgment Date | 14 October 2009 |
| Neutral Citation | [2009] CSIH 80 |
| Court | Court of Session |
| Date | 14 October 2009 |
| Published date | 10 November 2009 |
| Docket Number | XA191/08 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Carloway Lord Hardie Lord Philip | [2009] CSIH 80 XA191/08 OPINION OF THE COURT delivered by LORD CARLOWAY in the application for leave to appeal by TP (A.P.) Applicant; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent: ___________ |
Alt: Haldane; Solicitor to the Advocate General
14 October 2009
1. Background
[1] This case has a long history. Despite the decision to refuse the application, it would appear that the matter may not be at an end (infra). The applicant is a Jamaican citizen. On 19 October 2000, she arrived in the United Kingdom accompanied by her two children, then aged 3 and 10 months, on a six month visitor's visa. She outstayed the limit of that visa. She lived in London. For part of the time, at least, she may have lived with the children at the house of OE, the mother of her former boyfriend and father of her own children, namely LB. OE has young children of her own living with her.
[2] The applicant came to the attention of the authorities on 31 May 2006, when she was found to be transporting heroin and "crack" cocaine with a street value of approximately £78,500 from London to Aberdeen. She was served with a notice identifying her as a person liable to removal in terms of section 10 of the Immigration and Asylum Act 1999. On 27 July 2006 she was convicted of concern in the supply of the drugs under section 4(3)(b) of the Misuse of Drugs Act 1971. On 18 August 2006 she was sentenced to two years imprisonment, backdated to 2 June 2006. The relatively low sentence was attributable in part to her early plea of guilty and her co-operation with the authorities.
[3] On 11 April 2007 the Secretary of State decided to issue a deportation order under section 3(5)(a) of the Immigration Act 1971. The applicant appealed, claiming asylum because she feared persecution in Jamaica because of her sexual orientation. Despite a long term relationship with the father of her children, who remained in Jamaica, she maintained that she was a lesbian. On 26 July 2007, an AIT dismissed her claim. The AIT found that her account of being a lesbian lacked credibility but, in any event, the objective evidence and Country Guidance cases indicated no risk of persecution in Jamaica on this account. The AIT considered the applicant's plea that her Article 8 rights to a private and family life would be infringed. The AIT held that any disruption to the applicant's private and family life, in returning to Jamaica with her children, was proportionate for Article 8 purposes. An application to the AIT for reconsideration failed.
[4] The applicant applied to the Court of Session for a reconsideration. On 22 January 2008 this application succeeded. The basis for this was set out in a short Note by the Lord Ordinary as follows:
"(i) The [AIT] were not referred to the policy on deportation in cases where there are children with long residence; that is an important policy which should not be left out of account.
(ii) In any event, the [AIT] do not give sufficient reasons relating to the interference with article 8 rights..."
The policy referred to was "Deportation Cases where there are children of Long Residence" (DP5/96).
[5] The case came before a Senior Immigration Judge of the AIT to determine the position in relation to the applicant's Article 8 claim. He considered that the original AIT had not followed the structure set out in EQ (Deportation appeals: scope and process) Turkey [2007] UKAIT 00062, determined in July 2007. EQ required the AIT: first to confirm that an appellant is liable to deportation; secondly to consider any human rights claim and thirdly to apply itself to paragraph 364 of the Immigration Rules, which establish that there is a presumption that deportation is in the public interest in the absence of "exceptional circumstances". Because of the AIT's failure, and the reasons given by Lord Ordinary, a second stage reconsideration took place. This was solely in relation to the rights of the applicant under Article 8 to respect for her private and family life.
[6] In a decision promulgated on 24 September 2008, the AIT dismissed the appeal. The AIT stated:
"22. We accept that the appellant had family life with her children in Britain. We also accept that the appellant had some sort of private life here. Both elements of her family life and private life here are capable of being infringed but they can only be described as weak. The reality is that she has not had family life with her children since June 2006 because of the crime which she committed. [I]t is her evidence that she had not [worked] ...any work which she undertook was without authority. She has had no ascertainable private life since her arrest. Apart from the first months after her entry to Britain as a visitor, the appellant never made any attempt to regularise her stay here and her family life, that of an overstayer is weakened by that offence. Of course, in so far as her children would be able to return to Jamaica with her - that is returning to the country of their Nationality and where they were born - there would be no interference with their family life with the appellant.
23. Having accepted that the appellant has exercised some family life with other members of her extended family and exercised private life here, and also, in particular, that her children have exercised private life here, and that that family life is capable of being infringed as there would be interference with their private life in relation to their schooling and their family life with the family of [OE], with whom they live, we have considered whether or not the appellant's removal would be lawful. She has no right to remain here and she is liable to deportation: her removal would clearly be lawful. ...the removal of someone, such as this appellant, who has committed a serious crime, is necessary in a democratic society and is in the interest of the prevention of disorder or crime. She was sentenced to two years' imprisonment for extremely serious drugs offences. Carrying £78,500 worth of Class A drugs is a crime which could lead to very significant harm to society at large. The right of the state to remove serious criminals from Britain is an important one to safeguard society here.
24. ...the appellant's crime strongly indicates that the appellant should be removed. Against that overwhelming point, we must consider that the appellant has had some private and family life here. The quality of that private and family life does not appear to be of any particular weight. There appear to be no strong relationships built up... nor has she built up any work record here. We have taken into account the fact that it could well be difficult for the appellant on return to Jamaica but she has lived there, with two babies, on her own in the past and clearly there are a large number of relatives or acquaintances who have connections with Jamaica who might well be able to give some support there. We do not accept her assertion that she would know no one on return and would have to live on the streets.
25. We have very little information about the children although some school reports are attached to the papers and [OE] has stated that the children are fond of their mother and miss her. It was...the evidence of the [appellant] that she would not be taking the children with her until she could establish herself and that they would be remaining with [OE] with whom they have lived and who has been their sole guardian or carer since the appellant went into prison. ...Even if it were the case that the appellant's children, who have no status here, were to accompany her, there is no indication that it would be inappropriate for them to do so, returning to the country of their birth and nationality".
[7] The AIT proceeded to consider the policy DP5/96. This policy governed the position of children:
"either born here, are aged 7 or over or where, having come to the United Kingdom at an early age, they have accumulated seven years or more continuous residence".
The policy emphasises that each case must be considered on its merits but it stresses certain factors as of particular relevance, viz:
"(a) The length of the parents' residence without leave;
(b) whether removal has been delayed through protracted (and often repetitive) representations or by the parents going to ground;
(c) age of the children;
(d) whether the children were conceived at a time when either of the parents had leave to remain;
(e) whether return to the parents' country of origin would cause extreme hardship for the children or put their health seriously at risk;
(f) whether either of the parents have a history of criminal behaviour or deception".
The AIT noted that the children and the applicant had lived together for less than seven years and that, in any event, the children had not lived in the United Kingdom for seven years at the time of the deportation notice. The AIT considered that factor (f) was paramount. The AIT reasoned:
"It would be extraordinary that the fact that an appellant has been imprisoned for a serious offence would mean that she could qualify for a beneficial policy and we do not accept that that could be the case".
The children were then aged 11 and 8 and the AIT considered that:
"29. ...There does not appear to be evidence that the return of the children to Jamaica would necessarily cause extreme hardship or put their health seriously at risk. We accept that it would be disruptive and we have taken into account the age of the children,... We consider that they would be able to readjust to life in Jamaica...".
The AIT then concluded:
"The serious nature of the appellant's crime means that it is the duty of the [respondent] to ensure that criminals are removed and the discretion which is available to the...
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