Thursday, May 10, 2012

Appeal Granted against Deportation Order on Grounds of Failure to Properly Consider the Appellant’s Circumstances within the State

Deron Peart v Secretary of the State for the Home Department [2012] EWCA Civ 568

This case concerned an appeal against a decision to uphold a deportation order made against the applicant in December 2007. 

The appellant, a Jamaican national, came to the UK in November 1996 when he was eleven years of age on a visitor’s visa and then continued to reside in the UK illegally. His mother resided in the UK since 1994. The appellant entered and remained in education up until 2006 when he was unable to meet the costs of University. In April 2007, the appellant was sentenced to 30 months imprisonment following a plea of guilty to possession of a Class A drug with intent to supply. The appellant was subsequently subject to a deportation order. In the meantime, the appellant entered into a relationship with a UK citizen, Alexis, and their son Ashton, who is also a UK citizen, was born in 2009.

The Secretary of State refused his appeal against the deportation order in July 2009. The first-tier tribunal then allowed his appeal on the grounds that his removal to Jamaica would involve a disproportionate interference with his right to family and private life contrary to Article 8 of the ECHR. This decision was appealed against and a fresh hearing came before the Upper Tribunal, which then dismissed the appeal in 2011.

The grounds of appeal before the Court of Appeal are that the tribunal failed to consider Ashton’s best interests, failed to consider the appellants family and private life, failed to take into account important evidence and failed to consider whether the nature of the appellant’s offending was so serious as to justify his removal. Each ground was considered in turn-

(i) Failure to consider Ashton’s Best Interests-
The Judge in the Upper Tribunal (DIJ Woodcraft) was not convinced that the appellant had a close relationship with Ashton, but in order to do justice to Ashton’s position he should have considered how their relationship might develop in future if the appellant were allowed to remain. The Judge failed to consider the effect that the appellant’s removal would have on Ashton’s welfare and therefore did not give sufficient consideration as to what was in Ashton’s best interests or give his welfare the degree of importance it ought to have received.

(ii) Failure to give proper consideration to family and private life.
Although the judge examined the nature and extent of the appellant’s relationship with the members of his family, he did not draw the strands together in deciding whether his overall removal was proportionate. He also failed to make a significant assessment of his private life despite the fact that he had come to the UK when he was 11 years old and had been living in the country for 14 years. All he said was that the appellant had formed a private life of sorts during his time in the country, but that his failure to regularise his immigration status and his repeat offending outweighed his claim that his private life should be spared from interference.

(iii) Failure to Consider Relevant Evidence
The Judge rejected the appellant’s assertion that he had encountered positive people during his time in custody despite evidence from a prison officer and chaplain that he had made constructive use of his time.

A similar approach was taken to his history of offending. The appellant did have previous convictions for robbery and shoplifting but received a non-custodial sentence in each case. A sentence of 30 months imprisonment following a guilty plea was also at the lower end of the sentences for supplying class A drugs.

As to the prospects of re-offending, his probation report stated that the appellant showed clear signs of having made positive changes and assessed his likelihood of committing further offences as low. The Judge drew on a pre-sentence report but did not refer to the more recent progress report, which could be expected to provide the most reliable evidence of the appellant’s current attitude. The Judge failed to have regard to these important pieces of evidence, or if he did, he failed to properly assess their significance.

(iv) The Maslov principles
In Maslov v Austria the ECHR considered the approach taken by national authorities when considering the deportation of a foreign national on the grounds that his presence constitutes a danger to the community. The court listed a number of factors to be taken into account in assessing whether a deportation is proportionate. In the case of a settled migrant who has spent the major part of his childhood in this country only very serious reasons would justify removal, even if he has been unlawfully present. The Judge did consider some of the factors in Maslov as potentially relevant, but in deciding whether to remove the appellant he failed to have regard to important factors such as the age at which he arrived in the country, the length of his stay and the strength of his social, cultural and family ties within the country.

The Court of Appeal held that the decision of the Upper Tribunal was flawed in the respects identified to such an extent that it could not stand. The appeal was allowed and the matter remitted to the Upper Tribunal with a direction that there be a fresh hearing.  

The full text of the case can be accessed here

Brophy Solicitors


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