COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RICHARDS
LORD JUSTICE TOULSON
| KB (Trinidad and Tobago)
|- and -
|Secretary of State for the Home Department
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Christopher Williams (instructed by Messrs Wilson & Co) for the Respondent
Hearing date : 16 December 2009
Crown Copyright ©
Lord Justice Richards :
"46. Specifically, we find that, at the date of the hearing, and at all times since their reconciliation in late 2004/early 2005, and including his period in prison, the Appellant is and has been exercising family life with his wife and that throughout his son Kyle's life, and including again his period in prison, the Appellant has been doing so with Kyle. We find also that at the date of the hearing and for periods before and after his imprisonment, the Appellant has been exercising private life, comprising his employment, his care work for his friend and his fostering, with his wife, of children with special needs."
"Criteria for determining whether deportation is proportionate in cases following criminal convictions are set out in Boultif v Switzerland … and Üner v Netherlands …. We consider, in paragraphs 57 to 67, the appeal by reference to those criteria."
And that is just what it proceeded to do, taking in turn each of the criteria set out in paras 57 and 58 of the judgment in Üner v The Netherlands (2007) 45 EHRR 14.
"68. We summarise. The factors weighing against the Appellant are his conviction for possession of drugs with, on one of the counts, intent to supply, which the trial judge regarded as very serious, and to which significant weight is to be given; his earlier conviction; and the fact that he overstayed in the UK for more than six years. The trial judge did not recommend deportation; but in the context of the criminal justice system this fact is neutral.
69. There are weighty factors in the Appellant's favour. He has repaired his marriage, and has a meaningful family life with his wife, who cannot reasonably be expected to go to live in Trinidad and Tobago, and which would therefore end were he to be deported. He also has a meaningful family life also with his son, with whom he is consolidating his relationship after his period in prison and who, at the age of fourteen, now stands on the threshold of adolescence. This relationship, too, could not be meaningfully maintained if the Appellant were deported. The Appellant's wife and son are both effectively parties to the appeal, and their interests are to be considered. Mrs Bethelmy herself regards Kyle as an integral member of the family. Charged and awaiting trial, the Appellant went lawfully to Trinidad and Tobago for his father's funeral, taking Kyle. He had the opportunity to stay there, and perhaps to keep Kyle there, but returned voluntarily to what proved to be his conviction and sentence of six years imprisonment. He made sustained efforts in prison and afterwards to rehabilitate himself, and throughout that period remained free of drugs. His employer has re-employed him, now as a trainee electrician, for which he hopes to be financially able to train him. Everybody stood by him during his period in prison – his wife, his son, his employer and even, in a sense, his ex-partner. All could conveniently have abandoned him. This fact attests to his character.
70. The Appellant has succumbed to the temptation of an affair and of recourse to drugs, and has sorely tested the love of his wife. Yet he remains blessed with the love of a woman who, whilst she would be the first to repudiate any such description, is of that nobility of character which keeps goodness alive in the world. The Appellant is determined not to re-offend, and his wife is confident that he will not. To separate him permanently from his wife and son would be a disproportionate interference with his right to respect for his family as well as his private life. We are therefore required to allow his appeal on Article 8 grounds, which we do."
"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires."
Lord Justice Toulson :
Lord Justice Mummery :