ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Designated Immigration Judge Woodcraft
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE MOORE-BICK
| DERON PEART
|- and -
|SECRETARY of STATE for the HOME DEPARTMENT
Miss Susan Chan (instructed by the Treasury Solicitor) for the respondent
Hearing date : 29th March 2012
Crown Copyright ©
Lord Justice Moore-Bick :
(a) the appellant (who had a previous conviction for robbery in the course of which the victim was threatened with a knife) posed a significant risk to the community ;
(b) neither the appellant's mother nor Ms Alexis had sufficient influence over him to prevent his re-offending;
(c) the offence for which he was sent to prison was serious and would have attracted a sentence of several years imprisonment but for the guilty plea;
(d) accordingly, it was reasonably open to the respondent to make a deportation order in respect of the appellant ;
(e) the appellant had never lived with Ashton and was not likely to do so in the immediate future; the Tribunal had not been given a full picture of the appellant's relationship with his son and was not satisfied that that it outweighed the legitimate aim of protecting the public from him ;
(f) the relationship between the appellant and Ms Alexis was tenuous and his removal and the consequent disruption of their relationship would not involve a disproportionate interference with the Article 8 rights of either of them ; in any event, it would not be unreasonable to expect Ms Alexis to move to Jamaica with the appellant; Ashton was young and could adapt to life in Jamaica ;
(g) the appellant's offences were serious and he posed a risk of further offending ;
(h) the appellant's relationship with his half-siblings was not so strong that his removal would involve a disproportionate interference with his rights under Article 8 ; and
(i) there was little evidence that the appellant had worked or that he had significant friendships in this country that would be disrupted by his removal .
Failure to consider Ashton's best interests
"This did not mean (as it would do in other contexts) that identifying their [sc. the children's] best interests would lead inexorably to a decision in conformity with those interests. Provided that the tribunal did not treat any other consideration as inherently more significant than the best interests of the children, it could conclude that the strength of the other considerations outweighed them. The important thing, therefore, is to consider those best interests first. That seems, with respect, to be the correct approach to these decisions in this country as well as in Australia." (Emphasis added.)
"It is a universal theme of the various international and domestic instruments to which Baroness Hale JSC has referred that, in reaching decisions that will affect a child, a primacy of importance must be accorded to his or her best interests. This is not, it is agreed, a factor of limitless importance in the sense that it will prevail over all other considerations. It is a factor, however, that must rank higher than any other. It is not merely one consideration that weighs in the balance alongside other competing factors. Where the best interests of the child clearly favour a certain course, that course should be followed unless countervailing reasons of considerable force displace them."
"Although nationality is not a 'trump card' it is of particular importance in assessing the best interests of any child."
"78. Whilst I accept that the Appellant has a relationship with Ashton and does have contact, I did not find that I was given a reliable account of how frequently the Appellant sees Ashton. . . .
79. If the Appellant were to be deported to Jamaica there would be a serious effect both on his relationship with Ashton and any opportunity to develop that relationship. It is important to consider the quality of the Appellant's relationship with Ashton to determine the extent of that interference. I do not consider that I have been given a full picture of the relationship between the Appellant and Ashton. The evidence of visits has been contradictory both as to times and where they take place. Even if I have been given an accurate picture and the Appellant can show the close attachment described, I do not find I can say that the interference with that relationship when weighed against the Appellant's serious and repeat [sic] criminal offending would be such that the relationship being maintained and developed would outweigh the legitimate aim of the protection of the public."
"It was said in DS, that while 'the welfare of a child might be the paramount concern of a court, conflicting public interests have to be balanced' (paragraph 35). Evidence was submitted that it was less beneficial to a child to be brought up in a single parent family than by two parents. It may be, as in DS, that there is no option facing the Appellant and family members which is without evil (paragraph 31 ibid)."
Failure to give proper consideration to family and private life
Failure to consider relevant evidence
The Maslov principles
(i) the nature and seriousness of the offence(s) committed by the appellant;
(ii) the length of the appellant's stay in the country;
(iii) the period of time that has elapsed since the offence was committed and the appellant's conduct during that period;
(iv) the nationalities of the persons concerned;
(v) the appellant's family situation;
(vi) whether any spouse or partner knew about the offence at the time he or she entered into the relationship;
(vii) whether the appellant has children, and if so, their ages;
(viii) the seriousness of the difficulties the spouse or partner is likely to encounter in the country to which the appellant is to be removed;
(ix) the best interests and wellbeing of any children;
(x) the strength of the social, cultural and family ties with the host country and the country to which removal is to be made.
Lord Justice Hooper:
Lord Justice Maurice Kay: