Case No: C5/2010/0336 + C5/2010/0366/Z

Neutral Citation Number: [2010] EWCA Civ 824
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(SENIOR IMMIGRATION JUDGE CHALKLEY)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 23 June 2010

Before:

LORD JUSTICE LONGMORE
LORD JUSTICE ETHERTON
and
LORD JUSTICE SULLIVAN
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Between:

	NB (JAMAICA)	
Appellant	
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SSHD	

Respondent	

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Mr R de Mello and Mr Nazir Ahmed (instructed by Messrs Sultan Lloyd) appeared on behalf of the Appellant.
Miss Julie Anderson (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Sullivan:   

1.	This is an appeal against the determination promulgated on 21 August 2009 of Senior Immigration Judge Chalkley, dismissing the appellant's appeal against the respondent's decision to make a deportation order against him.

2.	The appellant is a Jamaican national who was born on 16 April 1985.  He came to the United Kingdom to live with his grandmother when he was ten years old.  On 12 October 1995 he was granted indefinite leave to remain.  His grandmother subsequently died.

3.	The appellant has a criminal record that goes back to 2001, but the Senior Immigration Judge took into account only the two most recent convictions.  On 21 September 2004, when the appellant was 19, he pleaded guilty to robbery and was sentenced to 15 months in a Young Offenders Institution.  On 3 May 2006, when the appellant was 21 years old, he was found guilty after a trial of offences of attempted robbery and having an imitation firearm with intent to commit an indictable offence, for which he was sentenced to seven years imprisonment and two years imprisonment respectively, those sentences to run concurrently.

4.	On 17 February 2009 the respondent decided to make a deportation order against the appellant.  The appellant appealed against that order on the basis that, firstly, he was entitled to protection under the Refugee Convention and, secondly, deportation would be in breach of his rights under Articles 3 and 8 of the European Convention on Human Rights.  His appeal was dismissed in a determination promulgated on 20 May 2009.  Reconsideration was ordered on the basis that it was arguable that the tribunal had failed to give adequate and proper reasons for its conclusions in respect of the appellant's Article 8 appeal.  Reconsideration was not ordered in respect of the decisions under the Refugee Convention and Article 3.

5.	The reconsideration was carried out by Senior Immigration Judge Chalkley in the determination which is the subject of the present appeal.  He concluded that there had been a material error of law in the earlier determination and reconsidered the Article 8 appeal afresh.  In reality, the sole issue was whether the undoubted interference with the appellant's private and family life was proportionate under Article 8(2).  The determination sets out in some considerable detail the nature and extent of the appellant's private and family life.  It is plain that the latter was more significant for the purposes of Article 8(2) than the former.

6.	The appellant enjoyed a family life with Jahmarn, one of his children from a previous relationship.  There was also another child, Jaheim, from another relationship, but DNA evidence at the earlier hearing had established that the appellant was not Jaheim's father.  Importantly, the appellant also enjoyed family life with Nadina Duncan, with whom he was living from August 2005 when he was released from custody until he was arrested and charged with attempted robbery and remanded in custody until his trial in May 2006.

7.	In 2007 the appellant and Ms Duncan became engaged whilst he was in custody.

8.	The Senior Immigration Judge concluded that it would be unreasonable to expect Ms Duncan to relocate with the appellant to Jamaica.  For present purposes the critical passages in the determination are contained in paragraphs 58 to 60:  

“58.  Mr Ahmed drew my attention to the fact that on deportation the appellant would be excluded from the United Kingdom for at least ten years. He did not draw my attention to it, but Para 391 of Statement of Changes in Immigration Rules, HC 395, as amended, provides that revocation of a deportation order would not normally be considered until at least ten years after the departure or removal:

‘391. In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion
(i) in the case of a conviction which is capable of being spent under the Rehabilitation of Offenders Act 1974, unless the conviction is spent within the meaning of that Act or, if the conviction is spent in less than 10 years, 10 years have elapsed since the making of the deportation order; or 
(ii) in the case of a conviction not capable of being spent under that Act, at any time, unless refusal to revoke the deportation order would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees. 
will normally be the proper course. In other cases revocation of the order will not normally be authorized unless the situation has been materially altered, either by a change of circumstances since the order was made, or by fresh information coming to light which was not before the appellate authorities or the Secretary of State. The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order.’
Accordingly, if the appellant is deported, the likelihood is that he would be excluded for a period of at least ten years after departure or removal. I bear in mind, however, that even [then], there is no guarantee that any application made by the appellant to return to the United Kingdom would be granted. 
59. I accept the evidence of Ms Burrell that she currently does not work and is in full-time study and could not afford to take Jahmarn to visit the appellant in Jamaica regularly because she also has two other children to care for. It might be thought that it would be open to both Ms Duncan and Jahmarn to visit the appellant in Jamaica.  Leaving aside the cost, I do not consider that any such visits, even if taken in conjunction with regular contact by telephone and email, would enable the parties to enjoy family life to any meaningful extent over the lengthy separation which, as I have said, would be for a minimum of ten years.  Realistically, if the appellant is removed pursuant to the deportation order, I believe that there would be substantial interference with the rights of the appellant and with the rights of both Ms Duncan and Jahmarn to enjoy family life with the appellant.  Indeed, it is more likely than not that deportation would bring to an end the family life which the appellant enjoys both with Ms Duncan and with Jahmarn.  This is a very significant factor in the appellant’s favour, given that, following the guidance by the House of Lords in Beoku-Betts, I am required to consider (as I confirm that I have) the family rights of both Ms Duncan and Jahmarn, in addition to the human rights of the appellant.
60. Ordinarily, the issue is not whether an individual would be willing to relocate or to continue to maintain the relationship through visits and by telephone contact, but whether it would be reasonable, in the circumstances, to expect them to do so. I have already found that it would not be reasonable to expect Ms Duncan to relocate to Jamaica with the appellant. As I have already indicated, it is more likely than not that the appellant’s deportation would bring to an end his family life with Ms Duncan.  I also believe that his family life with Jahmarn would also effectively be over and notwithstanding the close relationship that he currently enjoys with Jahmarn and his mother. These are also significant in the appellant’s favour, given the potential consequences for Jahmarn, the appellant’s biological son.”
 
9.	It is also relevant to note that the Senior Immigration Judge said in paragraph 70 of the determination:

"I have found that in the event of the appellant's lengthy exclusion from the United Kingdom, neither Ms Duncan nor Jahmarn would be able to enjoy a family life with the appellant to any meaningful extent.  The appellant's exclusion would effectively terminate their family life with him and his with them.  It will also bring to an end the very stabilising influence which Ms Duncan has had on the appellant."

10.	Permission to appeal was granted by Rix LJ on one ground only, that although the Senior Immigration Judge had cited paragraph 391 of the rules (see paragraph 58 of the determination) he had failed to take into account the fact that the appellant faced the prospect of permanent exclusion from the United Kingdom and had therefore failed to carry out a proper balancing exercise for the purposes of Article 8(2).

11.	I have some sympathy with the Senior Immigration Judge because it does appear that in the passage at the end of paragraph 58 of the determination when he said, "Accordingly, if the appellant is deported, the likelihood is that he will be excluded for a period of at least ten years after departure or removal. I bear in mind, however, that even [then] there is no guarantee that any application made by the appellant to return to the United Kingdom would be granted", he was simply accepting the submission that had been made on behalf of the appellant at the hearing.  Thus, in paragraph 16 of the determination we find this:

"[The appellant's counsel] asked me to find that it would not be reasonable to expect Nadina Duncan to relocate to Jamaica and to bear in mind that the deportation order would last for at least ten years and may well be very much longer."

12.	That is a fair summary of the written submissions that were advanced on behalf of the appellant.  In paragraph 19 of the determination, we find this:

"In his final submissions to me, Mr Ahmed... asked me to bear in mind that the exclusion period was for a minimum of ten years and that the appellant was very remorseful."

13.	It is, however, clear from the terms of paragraph 391 of the rules that if this appellant is deported, the likelihood is that he will be permanently excluded from the United Kingdom, not that he will be excluded for a period of at least ten years with no guarantee that he will be allowed to return thereafter.  There was, therefore, an error in the Senior Immigration Judge's determination.  But was the error material?  Could it, on the facts found by the Senior Immigration Judge, have made any difference to the outcome of the appeal?  In my judgment the answer to that question is no.  The Senior Immigration Judge carried out the balancing exercise for the purposes of Article 8(2) on the basis that the appellant's deportation would be likely to bring his family life, both with Ms Duncan and with Jahmarn, to an end, thus permanent exclusion could not have had any more adverse effect on the appellant's family life than his exclusion for a minimum of ten years.  In either case his family life would be brought to an end.  As the Senior Immigration Judge said, the fact the appellant's family life would be brought to an end was a "significant factor" to be weighed in his favour under Article 8(2).

14.	Given the Senior Immigration Judges's factual conclusions, there is no prospect on the particular facts of this case that the difference between permanent exclusion and exclusion for a minimum of ten years would have made any difference to the Article 8(2) balancing exercise.  It follows that the error was not a material one.

15.	On behalf of the appellant Mr de Mello renewed the application for permission to appeal on two further grounds.  He first complains of the following passage in paragraph 72 of the  determination:

"The facts of this case are not such that the applicant's family and private life claim should succeed under Article 8(2) and, in doing so, be one of the small minority of cases which should succeed under Article 8(2)."

16.	Mr De Mello submitted that in the latter part of that sentence the Senior Immigration Judge had erroneously elevated the small minority of cases test to a legal threshold akin to the exceptionality test that was rejected in Huang v SSHD [2007] UKHL 11.  In my judgment that submission plucks part of one sentence entirely out of context.  The determination must be read as a whole.  The Senior Immigration Judge had earlier cited all of the relevant authorities, including Huang and Razgar v SSHD [2004] UKHL 27 (see paragraphs 44, 50 and 53 to 55 of the determination) and he had expressly applied the guidance that was given by the House of Lords in Huang.

17.	The observation at the end of paragraph 62 is simply a reflection of the expectation that as a matter of fact it is, indeed, only a small minority of cases which will succeed under Article 8(2).  For my part I would not grant permission to appeal on this ground.

18.	The second complaint was that the Senior Immigration Judge had failed to take into consideration all relevant factors when carrying out the balancing exercise.  Mr de Mello submitted that the Senior Immigration Judge had failed adequately to consider the appellant's private life.  He referred to the passage in paragraph 72 in which the Senior Immigration Judge said:

"On the whole of the evidence (including the evidence not specifically referred to) and having given each of the factors such weight as I consider appropriate, I find that the appellant's removal would not prejudice family life and any private life in a manner sufficiently serious to amount to a breach of any protected rights under Article 8."

19.	Mr de Mello submitted that that was an inadequate consideration of the appellant's private life.  Had that been the only consideration that submission might have had some force, but again the submission plucks one concluding paragraph entirely out of context.  If the determination is read as a whole it can be seen that the Senior Immigration Judge did not merely set out the entirety of the appellant's statement in which he described such private life as he relied upon, but that thereafter in the determination the Senior Immigration Judge clearly gave very careful consideration to those aspects which were of significance, thus we find for example in paragraph 51:

"I accept and take fully into account the fact the appellant was born in Jamaica on 16 April, 1985, that his father died before his birth and that on the death of his mother he came to the United Kingdom in September 1995 to settle with his grandmother.  The appellant has spent most of his formative years in the United Kingdom and I accept that his relatives are in the United Kingdom and that he has no relatives in Jamaica."

20.	In paragraph 67 of the determination we find this:

"Having carefully considered the very supportive witness statements made by the appellant's friends, I accept the appellant is now genuinely remorseful.  I accept he now wishes to change his life for the better.  With this in mind the appellant has undertaken numeracy and literacy courses in prison and appears to have achieved successful results.  No doubt in encouraged by Ms Duncan the appellant successfully completed a parenting course and all these factors are very much to the appellant's credit."

21.	Apart from the point as to permanent exclusion which could have made no difference for the reasons set out above, in my judgment the Senior Immigration Judge painstakingly considered all of the relevant factors, including the factors particularly relied upon by Mr de Mello on behalf of the appellant.  He expressly recognised that the appellant had been lawfully in the United Kingdom since he was ten years old and had nowhere and no‑one to return to in Jamaica.

22.	Mr de Mello submitted that the Senior Immigration Judge had not identified any "very serious reasons" which could justify deportation.  But the Senior Immigration Judge assessed the seriousness of the offences for which the appellants had been convicted in paragraph 66 of the determination in terms which cannot sensibly be criticised.  He described both of the offences as very serious, said that the attack had been carried out in a callous and cowardly fashion and that the appellant had not pleaded guilty and had shown no remorse at the time of his conviction.  It is plain that these were very serious reasons which justified deportation and the Senior Immigration Judge's conclusion that deportation was not disproportionate, despite the effect upon the appellant's private and family life, was a conclusion which, in my judgment, was reasonably open to him.

23.	I would not, therefore, grant permission to appeal on this ground and I would dismiss the appeal on ground one.

Lord Justice Etherton:   

24.	I agree.

Lord Justice Longmore:   

25.	I also agree.

Order: Appeal dismissed; Application refused