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Reported Case

Appeal allowed after a long legal battle in Forrester v The Secretary of State for the Home Department [2018] EWCA Civ 2653 (20 December 2018)

Date: 20/12/2018
Duncan Lewis, Reported Case Solicitors, Appeal allowed after a long legal battle in Forrester v The Secretary of State for the Home Department [2018] EWCA Civ 2653

The appellant in this case, is a Jamaican national born in 1980. The appellant challenged the Secretary of State’s (SSHD) decision to deport him on the basis that deportation would disproportionately breach both his family and private life. The Court of Appeal has now ruled in our client’s favour finding that deportation would breach his human rights.

History of the Case

Our client first left Jamaica as a young child at age 4 to live with his mother in the USA. At 14 years old he entered the UK as a visitor to visit his father who was already settled here. Our client was initially granted discretionary leave to remain and indefinite leave to remain in 2000, when he was 20.

By this point, he had a daughter who was born in the UK in 1997. His relationship with her mother ended in 2004. His daughter remained living with her mother; however, when she began to attend college she lived with her father in the week as she studied close by.

In 2011 our client was sentenced to 4 years imprisonment for possession of Class A drugs with intent to supply. In 2013 he was served with a deportation order on the basis that his removal was conducive to the public good. He appealed this decision on the basis that:

  1. Deportation would amount to exile because of his private life in the UK under Article 8 of the European Convention on Human Rights.

  2. There will be a negative impact on his daughter.

  3. There was sufficient evidence to show that he had remorse and rehabilitated.

After success in the First-tier Tribunal (FtT), the Upper Tribunal (UT) dismissed its finding and sent it back to a differently constituted FtT. This Tribunal upheld the initial FtT’s decision and our client’s appeal was allowed. Once again the SSHD appealed this decision and the UT found it in their favour, on the basis that there was no legal justification for setting aside the deportation order and that the FtT’s decision was based on a material error of law. At this stage, our client appealed the UT’s ruling, claiming that there was no material error of law and thus no legal argument to support the decision to set aside the FtT’s decision.

Court of Appeal Judgment

By the time our client reached the Court of Appeal he had a British born daughter and grandchild. The appellant has extended family in the UK and no ties with Jamaica.

There are two exceptions where a deportation order is made against a foreign criminal according to 117C of Article 8 of the Nationality, Immigration and Asylum Act 2002. Exception 1 applies where the individual has (a) been lawfully resided in the UK for the majority of their life, (b) is socially/ culturally integrated in the UK, and (c) there would be very significant obstacles to their integration into the country to which they are to be deported. Exception 2 is met when there is a ‘genuine and subsisting relationship’ with a partner, or child, and deportation would impact harshly on these relationships.

The Court of Appeal noted that both of the statutory deportation exceptions set out were met in this case. However, our client could not rely on those exceptions because he had received a four year sentence and had to demonstrate very compelling circumstances to defeat the public interest ground for deportation.

The Court of Appeal ruled that the UT was wrong since they focused only on very compelling circumstances.

When delivering his judgment, in para. 20 Sir Patrick Elias commented:

‘The real gravamen of this ground of appeal is that the judge assumed that once something over and above an exception was established this would amount to compelling circumstances. But I do not think that this is a sustainable reading of judgement'.

On this basis, agreeing that his deportation would breach his human rights, the Court of Appeal allowed the appeal.

Our client is very pleased with this decision. He and his family had to fight a long battle to succeed and have incurred significant legal costs as a result.

Representation

Counsel for the appellant was Sandra Akinbolu, of Lamb Building, who was instructed by Tamana Aziz, Immigration Director from Duncan Lewis Solicitors.

 

Find full details of this case on Bailii’s website here.
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