Secretary of State for the Home Department v Garzon, Court of Appeal - Civil Division, May 25, 2018, [2018] EWCA Civ 1225

Resolution Date:May 25, 2018
Issuing Organization:Civil Division
Actores:Secretary of State for the Home Department v Garzon
 
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Neutral Citation Number: [2018] EWCA Civ 1225

Case No: C5/2016/1320/AITRF

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM)

UPPER TRIBUNAL JUDGE FRANCES

DA/00340/2014

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25/05/2018

Before:

LORD JUSTICE MCFARLANE

LORD JUSTICE SALES

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Between :

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Catherine Rowlands (instructed by Government Legal Department) for the Appellant

Gordon Lee (instructed by Lawrence & Co Solicitors) for the Respondent

Hearing dates : Thursday 10 May 2018

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LORD JUSTICE MCFARLANE :

1. On 6 February 2014 the respondent, a citizen of Colombia who arrived in the UK in October 1978 when aged 11 and who has resided here for nearly 40 years since that date, was served with a deportation order. His appeal against that order was allowed by the First Tier Tribunal (Judges Gibb and Beach) in July 2015. The Secretary of State's appeal against the FTT decision was dismissed by the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judge Frances) on 12 January 2016. The Secretary of State now appeals against the tribunal decisions, permission for a second appeal having been granted by Lord Justice Elias in February 2017.

2. The tribunal decisions and the issuing of the present appeal occurred at a time prior to the UK Supreme Court's decision in the case of Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] 1 WLR 4799 which aimed to provide clarity with respect to the law relating to the deportation of foreign criminals.

3. This appeal, therefore, in common with a number now coming before this court, whilst issued at a time when the law relating to deportation may not have been entirely clear, now falls to be determined in the light of the Supreme Court decision in Hesham Ali together with subsequent related decisions of the Court of Appeal.

4. As counsel for the Secretary of State, Miss Catherine Rowlands, conceded, the point of law now relied upon by the Secretary of State is in reality a perversity challenge to the FTT determination on the basis that the particular factual elements of the present case were incapable, either individually or taken together, of establishing the ``very compelling circumstances'' relating to the European Convention on Human Rights, Article 8 sufficient to justify the otherwise automatic deportation of a foreign criminal who has been sentenced to a period of between 12 months and 4 years imprisonment as required by Nationality, Immigration and Asylum Act 2002 (``NIAA''), s.117C and Immigration Rules, r398, 399 and 399A.

5. In the circumstances, save for asserting an error in the tribunal's application of the law to the facts of this case, this appeal does not raise any point of law for determination. My Lord and I, having read the papers in the case and heard the oral submissions of Miss Rowlands on behalf of the appellant, and without calling upon Mr Gordon Lee on behalf of the respondent, formed the clear view that the appeal could not succeed. In the circumstances, this is a short judgment, prepared in accordance with the current practice of this court.

Factual background

6. Although the FTT considered a substantial body of written and oral evidence at a hearing conducted over the course of 3 days, the relevant factual background can be stated shortly.

7. The respondent arrived in the UK in October 1978 at the age of 11 years and, thereafter, remained here having been granted, on two occasions, leave to remain. In 1987 he was sentenced to 3 years imprisonment for possession of a controlled drug with intent to supply. Between 1987 and 2010 he received 8 convictions for 11 offences made up of offences against the person, public order offences or offences relating to the police or justice system. On 17 September 2010 he was convicted of an offence of wounding with intent to do grievous bodily harm and was sentenced to a period of 45 months imprisonment. It was this latter period of imprisonment which triggered the Home Secretary's decision to order his deportation.

8. In addition to the history of previous convictions, the FTT heard evidence and considered police intelligence reports as to the respondent's general level of criminality, albeit that that behaviour did not lead to any specific criminal conviction. Having considered that evidence the FTT concluded (at paragraph 111) :

``From the evidence before us, we find that it is likely that the appellant has been involved in criminal activities in the past for which he was not arrested or charged. The appellant's criminal convictions suggest an individual who has been involved in a criminal and somewhat chaotic lifestyle but also an individual who has, to some extent, been able to hide this from his family.''

9. The FTT...

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