DM (Jamaica) v Secretary of State for the Home Department [2007] EWCA Civ 108

Case No C5/2007/1768Case No C5/2007/1769[2008] EWCA Civ 108
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYUM AND IMMIGRATION TRIBUNAL
[AIT No. IA/09541/2006 & IA/11352/2006]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 16 th January 2007
Before
SIR PAUL KENNEDY
Between
DM (JAMAICA)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Gillespie (instructed by Walthamstow Citizens Advice Bureau) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
JudgmentSir Paul Kennedy:
[1]These are two renewed applications for permission to appeal from decisions of the Asylum and Immigration Tribunal, permission having been refused on paper by Hooper LJ on 20 November 2007. The principal applicant, DM, is the father of the second applicant, and to a large extent -- and subject to the point made to me by Mr Gillespie -- the applications stand or fall together.[2]DM entered the United Kingdom on 30 March 1998, initially as a visitor, but he was allowed to stay on, first as a student and then as the partner of a woman whom I need only refer to as MB. On 23 June 2005 he was arrested because he was in possession of Class A drugs, namely heroin, with intent to supply. He was charged with that offence; he did not plead guilty, but he was convicted of it before the Crown Court and sentenced to a period of three years imprisonment -- that sentence being imposed on 24 February 2006.[3]He is thirty-six years of age, and at the time when the matter was being considered by the Secretary of State his claim to live in this country hinged upon his life with his partner and with two children, one of whom was the product of that union -- a girl born on 20 May 1998; and the other was the boy to whom I have already referred, who was born on 14 July 1995.[4]Having considered the position initially, the Secretary of State, in August 2006, decided that this appellant should be deported. Mr Gillespie submits that that decision was wholly mistaken, because at the time when he was sentenced he already had leave to remain as the partner of the lady to whom I have referred. It was a restricted leave to remain and he had applied for indefinite leave to remain, but on 26 April 2006 -- some two months after he was sentenced, his application for indefinite leave to remain was refused; however an extension of his existing leave was granted for a period of twelve months. Mr Gillespie’s first complaint seems to amount to this: that because that extension was granted, the Secretary of State had deprived himself of the opportunity of considering whether or not a deportation order should be made in the light of the conviction which had been recorded a couple of months earlier.[5]In my judgment that argument is simply untenable. It was still open to the Secretary of State to decide whether or not the situation was one which called for the exercise of his powers of deportation, and in due course and later that year and whilst the applicant was still in custody, the Secretary of State did so decide. As was pointed out by the Asylum and Immigration tribunal in that period, there was no question of detrimental reliance by the appellant upon the Secretary of State’s first and earlier decision: he simply remained in prison and, accordingly, I for my part find no reason to regard the first ground put forward by Mr Gillespie as having any substance.[6]His remaining two grounds relate to the impact of the decision upon this family. There is no question as to the validity of the relationship between the applicant and his partner, and of course any deportation of him has a considerable impact upon them. That said, it is clear that this partner is herself in origin a Jamaican. She, at present, apparently has not wish to return there, but has said at least on one occasion that she would go if the applicant had to go himself. What Mr Gillespie submits is that the tribunal did not give proper attention when dealing with this matter to the impact of the decision to deport upon the family. In my judgment that is not really a tenable submission if one reads the careful decision of the Asylum and Immigration Tribunal. It sets out in full the history of this matter, both as regards the applicant’s criminality and as regards his ties with the United Kingdom. At paragraph 86, to which Mr Gillespie drew my attention, the tribunal said this:
“…it has not been established that there will be any interference with family life. It cannot be said that it is unreasonable for family life to be carried on in Jamaica. There is also no reason to suppose that the family lives of all concerned cannot be carried on equally in Jamaica as they are here. As was said in Mahmood v SSHD [2001] 1 WLR 840: Removal or exclusion of one family member from a state where other members of the family are lawfully resident will not necessarily infringe Art 8 provided that there are no insurmountable obstacles to the family living together in the country of origin of the family member excluded, even where this involves a degree of hardship for some or all members of the family.”
[7]Of course there will be a degree of hardship, because of the circumstances; but the hardship in the last resort stems from the conduct of the appellant in committing serious criminal offences; and the Secretary of State plainly has a duty to consider whether those who commit such offences, and to have come from abroad, and who are present in this country on restricted terms, should be allowed to remain here. That was the duty which he sought to exercise in this case and the Asylum and Immigration Tribunal upheld his decision.[8]It was clearly recognised that, relatively speaking, he was dealing with a long-term resident. It was clearly recognised that there was a child of the current union -- all of that is set out in the decision. Mr Gillespie submitted that there is only passing reference to the girl. The girl is clearly referred to more than once in the body of the judgment, and so is -- and here I come to Mr Gillespie’s third point -- the son, who is the son of the applicant. I accept entirely that there has been no misconduct on the part of this twelve-year-old boy, but he is the dependent of the applicant, and it is precisely for that reason that he has been included within the scope of the deportation order. I do not see how it can properly be said that that violates the provisions of article 8 of the Convention. Of course it is true that he will remain excluded whilst the order is in force, but as a matter of common sense it is also true that if, for example, when he becomes a young adult he were to wish to return to this country to attend university, the fact that he has this exclusion order against him would be recognised to be only as a result of the deportation order made in relation to his father, and it is difficult to believe that that would at that stage be of any real detriment to him.[9]In my judgment nothing has been put forward this morning despite Mr Gillespie’s careful arguments, which could lead to the conclusion that there are here any realistic prospects of success if this matter were to go before the full court and I accordingly dismiss this renewed application.

Order

Application refused