Upper Tribunal (Immigration and asylum chamber), 2016-03-14, DA/00272/2013
| Jurisdiction | UK Non-devolved |
| Date | 14 March 2016 |
| Published date | 09 February 2017 |
| Hearing Date | 26 January 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00272/2013 |
Appeal Number: DA/00272/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00272/2013
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision and Reasons Promulgated |
|
On 26 January 2016 |
On 14 March 2016 |
Before
UPPER TRIBUNAL JUDGE GLEESON
Between
jason jamory smythe
aka
jason jamary
jason Jamor Smyth
jason jamary Smyth
jason jamari smythe
Jason jamary smythe
[NO ANONYMITY ORDER]
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: Mr P Haywood of Counsel, instructed by Owens Stevens solicitors
For the respondent: Mr I Jarvis, a Senior Home Office Presenting Officer
DECISION AND REASONS
-
The appellant appeals with permission against the decision of the First-tier Tribunal to dismiss his appeal against the respondent’s deportation order made on 22 January 2013, pursuant to sections 32 and 33 of the UK Borders Act 2007 on the basis that he is a foreign criminal. The appellant is a citizen of Jamaica.
Background
-
The appellant was born in Jamaica in 1980 and came to the United Kingdom in December 1997, age 17, seeking leave to enter as a visitor, which was refused at Gatwick airport. He was given temporary admission and absconded. In January 1998 he made an asylum claim which was refused and certified in March 2001. The appellant appealed: his appeal rights were exhausted on 1 November 2001.
-
In his original witness statement, the appellant said that his parents had left Jamaica for the United States, leaving him in the care of his grandmother, and close to his aunt who moved to the United Kingdom. He was generally well-behaved at school but did not make much progress because of undiagnosed dyslexia. He wanted to become a footballer. He began taking drugs when he was about 15 (when he would still have been in Jamaica) and he dropped out of school at 16, deciding to join his aunt in the United Kingdom. He thought that the drugs had probably had an effect on his mental health.
-
On 12 November 2001 the appellant sought leave to remain as the spouse of a British citizen. The application was refused. Further representations on human rights grounds were also refused. A judicial review application was refused, both on the papers and orally. The judicial review proceedings concluded on 23 September 2002.
-
The appellant’s account is that he resumed taking drugs (ecstasy, cocaine and cannabis) not long after he entered the United Kingdom, and he contends that his criminal history occurred because he was using drugs and ‘hanging around with the wrong crowd’.
-
The appellant has a lengthy criminal history: his early offences led to a hospital order, because the appellant was mentally unwell. The Police National Computer printout shows 12 convictions for 20 offences between 10 December 1999 and 22 April 2014, including 11 convictions for theft and kindred offence, 4 offences relating to police, court or prisons, 2 drugs offences, and 2 offences relating to bladed articles.
-
On 2 August 2006 the appellant was convicted at the Central Criminal Court of wounding with intent to do grievous bodily harm and sentenced to indeterminate detention for public protection. He had attacked a man who had previously attacked him, and who had made threats to the appellant’s family. On the night in question, both the appellant and the victim were armed, the victim with a knife and the appellant with a machete. The sentencing judge described the attack thus:
“Even accepting what you say, what you did to [the victim] that day went far beyond defending yourself. You aimed blow after blow onto [the victim] in a chopping motion, inflicting a series of injuries upon him including a fracture to the right arm and a number of lacerations to his body. He had to have two operations and was detained in hospital for 5 days. It was a serious and sustained attack and it is, perhaps, by sheer luck that you are not facing a more serious charge. You carried on this attack even when the police arrived and told you to put down the machete. As the author of the pre-sentence report says, your attitude was one of aggression and retaliation rather than self-defence.
The offence for which you pleaded guilty is a serious, specified violent offence. …Your record shows that you have committed serious specified offences in the past and I refer in particular to the offence of robbery of which you were convicted in 1999. …I have taken into account the information I have been given about those offences of robbery and the information I have been given as to the pattern of behaviour you have exhibited in carrying bladed articles as recently as 2004 and 2005. You committed this offence within 4 months of being sentenced for the second of those offences. … I have concluded that you do, indeed, pose a significant risk to members of the public of serious harm by the commission of further serious offences. …”
-
The sentencing judge considered that a life sentence was not required but that he must pass a sentence of imprisonment for public protection (IPP). He held that the determinate sentence he would have imposed was 6 years and 8 months, and directed that the applicant should serve a minimum sentence of 3 years and 4 months before parole could be considered.
-
The appellant has 2 daughters, both British citizens, who were 5 years and 18 months old when he went to prison. They are 14 and 11 now. He has not lived with his children since September 2005, although they visited him in prison in 2010 and 2011 on a number of occasions. His elder daughter provided a letter of support and was present at court but not called, when the First-tier Tribunal heard this appeal: she said that she and her sister enjoyed their fortnightly visits with the appellant and would be really upset if he were deported. It would be very expensive for them to visit him in Jamaica, and their mother would not allow them to do so unaccompanied. She would not see him till she was ‘a grown adult having missed all the time they could have shared together when she and her sister were kids’ as the First-tier Tribunal decision records.
-
In March 2012, the appellant became eligible for day and overnight releases prior to resettlement, and he did see the children then. It is not in dispute that the children’s best interests lie in remaining in the United Kingdom with their mother, who is their primary carer. The children’s mother visited the appellant in prison with the children in 2010 and 2011 on a number of occasions but by October 2012, the relationship had failed, although they remained friends.
-
The appellant was paroled from his IPP sentence in December 2012 but then re-detained on immigration detention in January 2013. The respondent gave the appellant an opportunity to show cause why he should not be deported under the automatic deportation provisions of the 2007 Act. On 22 January 2013, she served a deportation order upon him.
-
On 7 March 2014, while on bail, the appellant committed a domestic burglary, stealing property worth well over £4000 while the householder slept. He was convicted of burglary at Snaresbrook Crown Court on 22 April 2014 and returned to prison with a determinate sentence of 14 months’ imprisonment. He was released again on 19 December 2014.
-
The appellant stated that he no longer had any family in Jamaica, where he had not lived since he was 17. He is 36 years old. However, the mother of his children still has connections to Jamaica: her father and her brother live there and she had visited, as recently as 2013, with her sister, for a renewal of vows ceremony between her sister and her brother-in-law who live in Jamaica.
-
The appellant told the First-tier Tribunal that he had fortnightly contact with his children: his new partner would drive him over to see them, on a Saturday or a Sunday. He stated that his new partner was not a positive role model for him, and he blamed his further offending on a ‘rough patch’ and her influence. The appellant’s current partner is a British citizen and wishes to marry him. She is unwilling to go to Jamaica with him. She supports him financially in the United Kingdom but would not do so if he were living in Jamaica. She has a Jamaican father who now lives in the United States. Her mother was not Jamaican and the appellant’s partner was born in the United Kingdom.
-
On 6 October 2014, the respondent wrote to the appellant to say that she maintained her deportation decision but that additional circumstances required consideration, in this case the appellant’s burglary conviction on 21 April 2014. She applied paragraphs A398 to 399D of the Immigration Rules HC395 (as amended) and part 5A of the Nationality, Immigration and Asylum Act 2002 (as amended) and quoted extensively from the sentencing remarks of the Snaresbrook Crown Court...
To continue reading
Request your trial