Strand, London, WC2A 2LL
B e f o r e :
| ANDRE LEROY DUNKLEY
|- and -
|LEROY AUGUSTUS DUNKLEY
|PAMELA ANNEMARIE HARRIS
The first respondent did not appear and was not represented
Hearing date: 17 January 2018
Crown Copyright ©
Mr Justice Mostyn:
"The applicant is facing imminent deportation from the United Kingdom by the immigration authorities and has a pending application for judicial review before the Upper Tribunal (Immigration and Asylum Chamber), challenging the decision to deport him.
However, the applicant believes that he is a British citizen by descent, in that, his father, the first respondent, was a British citizen otherwise than by descent, at the time of the applicant's birth, so that notwithstanding that the applicant was born in Jamaica, after that country became independent from the United Kingdom, his father's citizenship would have passed to him.
In previous proceedings before the Immigration and Asylum Chamber, the first respondent to this application has accepted that the applicant is his son, but has refused to provide evidence of this by taking a DNA test and has more recently, denied paternity.
The applicant finds this very disturbing and emotionally challenging, and is also suffering the indignity and humiliation of immigration detention, pending deportation from the United Kingdom on 8 March 2017 for a minimum of 10 years.
The second respondent, the applicant's mother, believes that the first respondent is the father of the applicant, and has always maintained so, and there is a clear likeness between the applicant and the first respondent.
If the applicant is able to prove paternity, he would then be able to prove that he is a British system and it would be unlawful for the Secretary of State for the Home Department to deport him.
The first respondent has refused to provide the applicant with the certainty and peace of mind that he requires, by voluntarily undergoing a DNA test, which would be conclusive as to paternity, and therefore the applicant respectfully requests that the court assists him in determining his paternity (and eligibility to British citizenship)."
"[The appellant] arrived in the UK on 15 August 2002 aged 16, as a visitor, and was granted leave to enter until 13 September 2002. On 11 September 2002 he requested leave to remain as a student, which was rejected on 25 October 2002, as an application had not been submitted and the appellant was only studying English 14 hours a week. On 7 November 2002 the appellant made a second application for leave to remain as a student, which was rejected on 3 February 2003. The appellant made another application on 19 March 2003 to obtain leave to remain as a student. However, on 22 May 2003 he was granted leave to remain as a dependant of his mother, who had applied for leave as the spouse of a settled person, granted until 24 December 2003. On 26 November 2003 the appellant applied and was granted indefinite leave to remain as the dependant of his mother. On 2 April 2008 at Croydon Magistrates Court he was convicted of theft – shoplifting – and was sentenced to a conditional discharge of 12 months and £100 costs. On 13 January 2009 at Camberwell Green magistrates he was convicted of possessing cannabis, a Class C controlled drug and a breach of his conditional discharge and was sentenced to a fine of £50 on 3 June 2011 at Basildon Crown Court the appellant was convicted of five counts of supplying a controlled drug, and on 8 September 2011 he was sentenced to 18 months imprisonment. In the light of this the appellant was served with a notice of liability to deportation on 21 October 2011. A deportation order was signed on 21 August 2012."
i) 20 April 2005: possessing an offensive weapon in a public place namely an article with a sharply pointed blade;
ii) 20 July 2005: possessing an article with a blade or point in a public place;
iii) 16 May 2006: fraudulently using a vehicle licence, using a vehicle while an insured, driving without a licence and using a vehicle with no test certificate;
iv) 2 August 2006: breach of a community punishment order;
v) 11 January 2007: possession of cannabis; and
vi) 8 April 2013: making a full statement to obtain insurance, using a vehicle while an insured, failure to display vehicle licence and failure to surrender the to custody at the appropriate time.
The letter gave further details of the conviction for the supply of controlled drugs on 3 June 2011. The drugs in question were heroin and crack cocaine and were supplied to an undercover police officer on five occasions over four days.
"14. Having regard to the totality of the evidence before me (sic), we do not accept as established that [the first respondent] is the father of the appellant. We find that there is no objective and/or reliable official documentation before us showing [the first respondent] to be the father of the appellant. The appellant's Jamaican birth certificate made no mention of [the first respondent] as the father of the child. While we note the explanation put forward for the omission of the father's details from the appellant's birth certificate we find no credible reason before us why at the age of 27 years, and particularly given the potential implications of his paternity, there has not been any attempt made to officially amend the appellant's birth certificate to include the details of his father as alleged. We find it lacking in credibility that there has been no official application for the amendment of the appellant's birth certificate to include his father's details as alleged, particularly once it came to light that those details had not been included on the certificate when the child's birth was registered, and given the significance of the issue of the appellant's alleged paternity to his deportation appeal.
15. We are also struck by the refusal of [the first respondent] to cooperate in the DNA testing in a bid to establish the appellant's claimed paternity. [The first respondent] insisted throughout his testimony that he had no doubt that the appellant was his child and as such she saw no reason to undertake a DNA test to establish this. However, we note that the only evidence he had of his said relationship to the appellant was the word of the appellant's mother. The evidence before us was that she had a brief relationship of some five months with [the first respondent (circa January 1985 – May 1985), fell pregnant during this period and told him that the child was his. However, we note that the appellant's mother was said to have entered into a relationship with [the first respondent's] brother after their relationship broke down. [The first respondent's] evidence was she told him her relationship with his brother started after the appellant's birth. The appellant's mother herself failed to attend the hearing. She did not provide any explanation for her absence and made no effort to provide any evidence to explain why she failed to attend the hearing. The appellant simply said in answer to questioning as to where his mother was, that she was at home and was not feeling well. Given the potential implications of the hearing for her son and the significance of the issue of his paternity the whole question of his deportation and its lawfulness, given the lack of any reliable official documentation confirming the appellant's claim paternity and given the history of her brief relationship with the appellant's [alleged] father and personal history, we find it seriously lacking in credibility that the appellant's mother failed without any credible explanation if at all to attend the hearing.
16. We consider it reasonable to expect against the background circumstances as we have outlined that the appellant's mother would have made every effort to attend the hearing and give evidence in support of his case. That she failed to take the opportunity to appear before the tribunal and give evidence in support of a son gives us very grave misgivings as to her overall credibility and the weight to be attached to her account. We find it likely that she failed to attend the hearing because she did not wish to have her evidence tested and this was likely because she has not been truthful about her background circumstances and personal history. Given the fact that there is no credible official record before us to show that [the first respondent] is the father of the appellant and that the only evidence of his paternity is effectively the word of his mother, given the brevity of her relationship with [the first respondent] and the fact that she proceeded thereafter to a relationship with his brother and failed to attend the hearing to give evidence to shed light on these matters and have her evidence tested, we do not accept that there is credible evidence to establish that [the first respondent] is the father of the appellant. Whilst we have no reason to doubt [the first respondent's] testimony that he has always considered the appellant to be his son and has been involved in his life accordingly, and the appellant's testimony that he has always understood and believed [the first respondent] to be his father, this is of course a question of fact and credible evidence and not of belief. For the reasons we have already outlined above, we set no store by the account of the appellant's mother attributing the appellant's paternity to [the first respondent].
17. We consider that there is a distinction properly to be drawn between what [the first respondent] and the appellant believe regarding the appellants paternity and what as a matter of evidence and fact is the case. We have already found that the appellant's mother's word as to his paternity cannot be relied upon. A DNA test would have conclusively established the position one way or the other. We find it illogical and implausible, particularly given his professed certainty as to his relationship to the appellant and his affection for and concerns for him if he were to be deported to Jamaica, that [the first respondent] should nevertheless resist the opportunity to conclusively establish his claimed paternity of the appellant, thereby also removing the threat of his deportation from the UK. We find it likely that it was/is precisely because [the first respondent] has very real doubts about the appellants paternity and does not wish to face this situation that he has failed to cooperate in the DNA testing process with the appellant.
18. We do not accept as established from the evidence before us that [the first respondent] is the father of the appellant. …"
"The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party's conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice."
"..the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case"
But there is no such DNA evidence, so the problem does not arise.