Upper Tribunal (Immigration and asylum chamber), 2015-11-06, [2015] UKUT 654 (IAC) (R (on the application of Bent) v Secretary of State for the Home Department (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge McGeachy |
| Status | Reported |
| Date | 06 November 2015 |
| Published date | 27 November 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 03 August 2015 |
| Subject Matter | IJR |
| Appeal Number | [2015] UKUT 654 (IAC) |
IN THE UPPER TRIBUNAL
R (on the application of Bent) v Secretary of State for the Home Department IJR [2015] UKUT 00654 (IAC)
Field House
London
Wednesday, 3 August 2015
the queen (on the application OF)
damian robert bent
Applicant
AND
Secretary of State for the Home Department
Respondent
Before
UPPER TRIBUNAL JUDGE MCGEACHY
Respondent
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Mr P Haywood, Counsel, instructed by Messrs Owen Stevens Solicitors, appeared on behalf of the applicant
Miss J Anderson, Counsel, instructed by Government Legal Department, appeared on behalf of the respondent
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JUDGMENT
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JUDGE Mcgeachy: The applicant is a citizen of Jamaica, born on 15 August 1986, who applies for judicial review of decisions of the respondent made on 15 October 2014 to remove him from the United Kingdom, to refuse to revoke a deportation order and to certify that refusal under Section 96 of the Nationality, Immigration and Asylum Act 2002. The effect of that certification is that the applicant has no right of appeal against the decision.
2. The applicant arrived in Britain on 2 October 1998 and was granted indefinite leave to enter. On 21 March 2001 he was convicted of robbery and, because of his age, was subjected to an action plan imposed by the court. On 24 June 2004 he was convicted of possession of a bladed article in a public place, possession of a Class C drug and driving otherwise than in accordance with a licence. He was subjected to a community order and disqualified from driving for three months. On 24 May 2006 he was convicted of possession of a Class C drug and fined and also convicted on that day of driving otherwise than in accordance with the licence, whilst uninsured and using a vehicle with no test certificate. He was fined and banned from driving for two months.
3. The applicant has a child, DB, who was born on 20 June 2010. It appears that the applicant’s relationship with her mother, Sherika Taylor, ended shortly after her birth.
4. On 11 April 2011 a no time limit endorsement was placed on his passport. Seven months later he pleaded guilty to three counts of supply of Class A drugs having sold crack cocaine to undercover detectives. On 25 November 2011 he was sentenced to three years’ imprisonment on each count to be served concurrently.
5. On 14 February 2012 he was served with notice of liability to automatic deportation under the provisions of Section 32 of the UK Borders Act 2007.
6. On 29 January 2013 the Children’s Champion approved a family split on deportation. A decision was made to make a deportation order, against which the applicant appealed. His appeal was dismissed in the First-tier Tribunal on 10 April 2013.
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The applicant was granted permission to appeal to the Upper Tribunal. The Upper Tribunal considered the appeal and dismissed it in a determination promulgated on 23 September 2013. By 10 October 2013 the applicant had exhausted his appeal rights.
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The applicant was placed on reporting conditions but absconded from the reporting centre on 8 May 2014, thereby obstructing efforts to deport him on 1 June. On 28 May he again frustrated a removal attempt and on 12 June 2014 absconded when asked to go to the interview room at the reporting centre.
9. On 14 June 2014 the police attended his address as he had been reported missing by his mother.
10. On 19 June 2014 an application to revoke the deportation order was made. The refusal and certification of that claim is the subject of these proceedings. The application referred to the OASys report which had not been before the Tribunal stating that it said that the likelihood of re-offending was low and also referred to paragraphs 390, 398 and 399A of the Rules arguing that there were exceptional circumstances in this case and that the applicant was not a risk to the public. It was emphasised that he was close to his daughter and reference was made to a letter from Ms Taylor setting out her difficulties in taking care of DB without the assistance of the applicant. The representations asserted that deportation would cause serious harm to the applicant's daughter’s emotional wellbeing.
11. Emphasis was placed on the fact that he suffered from depression and had recently been hospitalised. It was said that he had suffered from depression from a young age and that he had received counselling in 2009 and was currently taking anti-depressants and that his depression has increased as a result of the stress and anxiety of detention and deportation.
12. The letter asserted that the applicant had been free from substance abuse for the last three years and referred to case law relating to Article 8 of the ECHR.
13. On 7 August 2014 arrangements were made to detain the applicant on reporting but he absconded from the reporting centre before he could be apprehended.
14. Arrangements were again made to remove him on 14 August 2014 but the presence of a child alone with him prevented detention. The applicant said that the child’s mother was at that time in Jamaica.
15. On 2 October 2014 arrangements were made to detain him when he reported but he reported with a child, which prevented detention. On 9 October 2014 he was detained, served with a decision to reject and certify his representations to revoke the deportation order and on 16 October 2014 removal directions were served for 6 November 2014. His application for judicial review was lodged on 31 October.
16. The decision to refuse to revoke referred to the provisions of Section 32(5) of the Borders Act 2007 and the mandatory provision that the Secretary of State must make a deportation order in respect of a foreign national who had been convicted of an offence and who had been sentenced to a period of imprisonment of at least twelve months unless he fell within one of the exceptions set out in Section 33 of that Act.
17. The Secretary of State considered that the applicant did not fall within one of those exceptions. Having set out the applicant's immigration history and referred to the determinations in the First-tier Tribunal and in the Upper Tribunal the Secretary of State set out at some length the submissions which had been made with regard to his daughter.
18. In paragraphs 19 onwards of the letter the Secretary of State considered the application and stated that the Upper Tribunal, when considering the applicant’s deportation appeal, had properly considered all relevant factors including the claim that the applicant was at low risk of offending and stated that full and anxious consideration had been given to the best interests of the applicant's daughter and that it had been found that the removal of the applicant remained proportionate. Reference was made to the provisions of Section 55 of the Borders, Citizenship and Immigration Act 2009 and it was stated that the Home Office recognised that the interests of the applicant's daughter was a primary consideration when making the decision.
19. Thorough consideration was given to the applicant’s history of depression but it was stated that it was believed that the applicant was using his medical issues to frustrate attempts to deport him.
20. When considering the rights of the applicant under Article 8 of the ECHR the letter referred to paragraphs 362 and 398 to 399D of the Rules. When considering the position of DB it was noted that the applicant had not been in a relationship with his daughter’s mother for some time and that she was the primary carer for DB although it was accepted that DB had regular visits with the applicant and his extended family.
21. The letter considered at length the provisions of paragraph 399A of the Immigration Rules and the exception contained therein. It was stated that it was accepted that DB was a British citizen. It was pointed out that the applicant did not live with her and it was stated that although it was considered that it would be unduly harsh to expect DB to leave the United Kingdom as she lived here with her mother who was her primary carer and was attending school here, it was not considered to be unduly harsh for her to remain with her mother when the applicant was deported.
22. The writer of the letter went on to note that the applicant was not in a relationship with DB’s mother or anyone else. In paragraph 44 of the letter it was stated that it was not accepted that the applicant had been lawfully resident in the United Kingdom for most of his life. It was pointed out that he had entered Britain on 2 October 1998 aged 12 with indefinite leave to remain and he was now 27. It was not accepted that the applicant was socially and culturally integrated into Britain – reference was made to his various offences. Moreover, it was not considered that there would be very significant obstacles to his integration into Jamaica as he had spent the majority of...
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