The Secretary of State for the Home Department v OP (Jamaica), Court of Appeal - Civil Division, March 06, 2018, [2018] EWCA Civ 316

Resolution Date:March 06, 2018
Issuing Organization:Civil Division
Actores:The Secretary of State for the Home Department v OP (Jamaica)

Neutral Citation Number: [2018] EWCA Civ 316

Case No: C5/2015/1851




Upper Tribunal Judge Martin


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 06/03/2018






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Mrs Carine Patry (instructed by Government Legal Department) for the Appellant

Mr Darryl Balroop (instructed by Reece Thomas Watson) for the Respondent

Hearing date: 14 February 2018

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The Senior President:

  1. This is an appeal by the Secretary of State (SSHD) against a determination of the Upper Tribunal (UT) promulgated on 27 February 2015. By that determination, the UT upheld the decision of the First-tier Tribunal (FtT) made on 1 December 2014. The respondent, who has the benefit of an anonymity direction, is a convicted criminal, who is the subject of a deportation order. I shall call him `OP'. The FtT allowed OP's appeal against deportation on article 8 grounds, concluding that his case was sufficiently strong and compelling as to prevail over the public interest in his deportation. The UT upheld that decision by finding that there had been no material error of law in the FtT's determination.

  2. The factual summary can be taken from the judgment of the FtT, the Secretary of State having confirmed that the facts as found are not in issue.

  3. OP is a national of Jamaica born in January 1985. He arrived in the UK on 13 December 2002 as a visitor. He subsequently extended his leave to remain by joining the British Army. He was discharged from the army on 25 May 2005. On 26 July 2007 he applied for naturalisation as a British citizen but this application was refused. He applied for indefinite leave to remain on 11 February 2008 but this application was also refused in a decision made on 2 December 2009.

  4. OP did not leave the UK and on 15 February 2010 he made a further application for leave to remain. He was by then in a relationship with a British citizen who is the mother of their two children who are also British citizens. OP's application was refused but his subsequent appeal was allowed by the Tribunal on the basis that it was satisfied that OP had established private and family life in the UK.

  5. On 15 April 2012 OP was involved in a robbery. On 13 November 2012, following a trial, OP was convicted of robbery and sentenced to 4 years' imprisonment. While these matters were ongoing OP had a further child who was born to a woman with whom OP has not continued a relationship.

  6. OP was released on 23 September 2014. On release he returned to live with his partner and their two daughters. He also started to have contact with his son.

  7. In a decision of 3 June 2014 the Secretary of State applied the automatic deportation provisions in section 32(5) of the UK Borders Act 2007 and considered that none of the exceptions in section 33 of that Act applied. The decision was accompanied by a deportation order.

  8. OP appealed to the FtT on 24 June 2014 and the FtT heard his appeal on 10 November 2014. On 1 December 2014 the FtT allowed the appeal holding that there were very compelling reasons which outweighed the weight to be attached to the public interest in deportation. The Secretary of State obtained permission to appeal to the UT.

    The statutory scheme:

  9. Section 32 of the 2007 Act provides for the automatic deportation of foreign criminals. A foreign criminal is defined as a person who is not a British...

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