ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[APPEAL No: DA/00618/2011]
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE HALLETT
LORD JUSTICE RIMER
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Ms Lisa Busch (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Laws:
"3. On November 5th, 2010 the appellant pleaded guilty to charges of possession with intent to supply Class A drugs namely cocaine and heroin, being concerned in the supply of a Class A drug crack cocaine and an allegation of failing to surrender to the court, when required. The Crown Court, sitting at Hull, imposed a 13 month prison sentence.
4. The sentencing judge commented:
'...All of these offences, in fact, originate from a period now in excess of two years ago, back to January 2008. The reason they are so old is because soon after you were arrested you chose to absent yourself and remain at large. You have more recently been arrested and you appeared here on the 5th November on this year, when you were sentenced to three months imprisonment in relation to a breach of bail...
The reality is that if you have been here with your co-accused on the occasions when you were meant to be here back in 2008, it is likely that the sentencing judge, His Honour Judge Mettyear, would have imposed similar penalties upon you as he imposed at that time on others."
"His offending behaviour began in 2003 and we noted he had the following convictions/reprimands/cautions:
03.12.2003 Possession of Cannabis Reprimand
10.12.2003 Possession of Cannabis Warning (given 16.04.04)
17.03.2006 Possession of Cannabis Referral Order (given 26.09.05)
Possession of Cocaine Supervision Order (given 02.10.06)
02.10.2006 Breach of Order No action taken (Dealt with on 17.10.06)
17.10.2006 Possession of Heroin Supervision order (given 12.01.07)
17.01.2008 Poss Cocaine w/i supply) 30 months imprisonment
Poss Heroin w/i supply) (given on 03.12.10)
17.01.2008 Concerned in supply)
12.09.2008 Fail to appear Court 3 months imprisonment (given on 3.12.10)
It is apparent from his record that his offending behaviour began after he met Miss Wright and has continued throughout the course of their relationship. His offending behaviour has been continuous from 2003 and we noted that despite being given a warning on December 3, 2003 for possession of cannabis he committed a similar offence seven days later.
He first came to the Court's attention in September 2005 for a similar offence but within a few months of completing a referral order he then was back before the Courts for a similar offence and a more serious offence of possessing a Class A drug. He was placed on a 12 month supervision order on October 2, 2006 but within fifteen days of appearing in Court for sentence on those offences he was again arrested for possession [of] a Class A drug (heroin) and he was also sentenced for breaching the original Supervision Order. He was placed on a new twelve month Supervision order and he committed the current offences a week after the expiry of his order.
In considering his criminal history and response to orders we have noted that he told the original panel that throughout 2007 he was selling drugs to fund his own drug habit and to pay off a drug debt despite the fact he was on a community order.
His record and behaviour is relevant to the question of propensity to re-offend. Although we have taken on board Mr Selway's submissions that since his arrest in January 2008 he was not convicted of any further offence save failing to attend court his previous convictions and admissions to those in authority demonstrate his propensity to re-offend.
28. We have had regard to the pre-sentence report dated November 30, 2010. This report confirms that in January 2008 the Appellant admitted he was spending £150 a day on his crack cocaine habit."
"The Respondent grounds that the panel failed to adequately reflect their finding of the appellants expressions of remorse to be without foundation has merit as arguably this has to be carried through to a detailed consideration of what is in the best interests of the child which as the grounds set out are not immediately obvious."
"The appellant obviously cannot at the same time be both contrite and in denial about the offences which have led to the respondent's decision to deport him. As Mr Hamid did not invite us to go behind the appellant's convictions for the index offences, we are bound to regard the appellant's expressions of remorse and his professed determination to reform as worthless."
"...the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued."
The criteria were as follows :
"- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant's stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant's conduct during that period;
- the nationalities of the various persons concerned;
- the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled.
"In these circumstances, we do not consider it reasonable to expect her to follow the appellant to Jamaica, a step which would also mean depriving her daughter of the benefits of her British citizenship."
Then a sentence later:
"If deported, the appellant would be excluded from the United Kingdom for a period of 10 years following his removal. The appellant's deportation to Jamaica would therefore very likely spell a permanent end of this young family's life together."
The FTT's conclusion is in the next paragraph :
"27. Had the appellant been convicted of a serious violent or sexual crime -- or possibly a more serious offence of drug dealing than the length of the sentence of imprisonment would suggest was the case here -- then we would have had no hesitation in upholding a decision that would likely lead to the drastic consequence of permanent family division and break-down. As it is, we are not satisfied that he deportation in this case represents a fair balance between the public interest in preventing crime and disorder on the one hand and the familial interests of the appellant, his partner and their daughter on the other."
"Having considered the Representative's submissions we were satisfied that the panel had erred in its approach to the issue of proportionality. In particular, we found the findings on proportionality to be limited and the panel had not adequately considered what was in the best interests of the child as distinct from what the child, in an ideal world, may desire. The panel had also failed to adequately consider the 'risk of reoffending' when assessing public interest and we therefore set aside the panel's determination."
"We have considered Kianna's best interests in light of the known information and above case law. In normal circumstances we accept it is in the best interests of a child to live with and be brought up by both parents but this is not always possible. In assessing the best interests of Kianna regard has to be had to the Appellant's recent past and the effect his drug taking had or could have on her in the future.
57. Although Kianna was born in the middle of 2006 we are satisfied, based on the evidence before us, the Appellant spent significant parts of 2007, away from his daughter, in Hull selling drugs. Whilst he appears to have spent part of 2009 and most of 2010 with Kianna we are aware this only occurred after he failed to attend Court and he was on the run and being harboured by Miss Wright.
58. Since his detention Kianna is said to see her father around once a month. If the Appellant was to commit similar offences after his release (and we note the risk of offending in the OASys report) then consideration has to be given as to whether the Appellant would actually be there for Kianna and the effect his drug taking would have on the family itself. As there is no suggestion that Kianna and her mother would be required to live in Jamaica language, health and education do not raise concerns. The Appellant does not need to be in the UK for Kianna to receive any necessary medical treatment or her education."
"i. Although Kianna could benefit from having both parents with her we cannot overlook the damaging effect the appellant has had on her family life to date and the possible damage she could bring to the family, and others, if he does reoffend. The OASyS report describes the risk of reoffending as medium and in light of his previous offending history (offences committed every year between 2003 and 2008) we too share the concern over the risk of reoffending despite recent evidence of an improvement. It is clear the Appellant has told different people different stories in respect of his offending behaviour and his statement that he is motivated to stay out of trouble has to be looked at in that light and his admission that it was the threat of prison that made him revaluate his lifestyle."
Then the Upper Tribunal concludes:
"61. We have also considered other family life issues raised by the appellant and in particular the family life with his own family. His parents and siblings are all adults and while family life clearly can exist (Beoku Betts) there is no dependency on him by those family members or him on them. He appears to have flitted in and out of their lives as evidenced by the fact he left his mother and siblings in 2002 to go and live with his stepmother and girlfriend and he has now fallen out with his sister because she reported him to the police. The statements of evidence do not persuade us that removing him would be disproportionate.
62. Although the Appellant has spent a considerable amount of time in the UK we take into account that he is a young adult who has used his time in detention usefully. There is no country evidence before us to suggest that it would be unreasonable or unduly harsh to require him to return to Jamaica. He spent 11 years in Jamaica and did not find himself in any trouble but it is clear that since coming to the UK he has offended with regularity admitting that he had sold drugs even when he did not have a drug habit (see OASyS report).
63. We are satisfied that whilst removal would breach his family and private life such a removal would be proportionate having regard to the risk of reoffending and the danger to the public."
"Whilst in custody he was further assessed and the results of that assessment are contained in the OASyS report dated March 15, 2011. There was a 40% risk of him reoffending within 12 months of his release and a 58% risk of him reoffending within 24 months of his release."
OASyS reports contain assessments by trained probation officers whose job it is to assess risk (see the observations of Pitchford LJ in AM (Turkey)  EWCA Civ 1634 at paragraph 34).
"A further important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes."
(OH (Serbia)  EWCA Civ 694 per Wilson LJ (as he then was) at paragraph 15)
"(1). In automatic deportations made under s.32 (5) of the UK Borders Act 2007 the respondent's executive responsibility for the public interest in determining whether deportation is conducive to the public good has been superseded by Parliament's assessment of where the public interest lies in relation to those deemed to be foreign criminals within s.32(1)-(3). In consequence the respondent's view of the public interest has no relevance to an automatic deportation.
(2) In such cases by virtue of s32(4) it is not open to an appellant to argue that his deportation is not conducive to the public good nor is it necessary for the respondent to argue that it is."
And in Gurung v SSHD  EWCA Civ 62 this court said:
"The Borders Act by s.32 decides that the nature and seriousness of the offence, as measured by the sentence, do by themselves justify deportation unless an exception recognised by the Act itself applies."
Lady Justice Hallett:
Lord Justice Rimer:
Order: Appeal dismissed