Forrester v The Secretary of State for the Home Department, Court of Appeal - Civil Division, November 29, 2018, [2018] EWCA Civ 2653

Resolution Date:November 29, 2018
Issuing Organization:Civil Division
Actores:Forrester v The Secretary of State for the Home Department

Case No: C5/2016/3590

Neutral Citation Number: [2018] EWCA Civ 2653


ON APPEAL FROM the Upper Tribunal (Immigration and Asylum Chamber)

UT Judge Smith

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 29/11/2018



(Vice-President of the Court of Appeal (Civil Division))




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Ms Sandra Akinbolu (instructed by Duncan Lewis Solicitors) for the Appellant

Mr Robert Harland (instructed by the Treasury Solicitor) for the Respondent

Hearing date: 22nd November 2018

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Sir Patrick Elias :

  1. The appellant in this case is a Jamaican national. He was born in 1980. He left Jamaica with his mother when he was four and lived with her in the USA until he was about 14 when he came to the UK. He has no family or friends in Jamaica. He was given Indefinite Leave to Remain in July 2000 very shortly after his 20th birthday. By then he had a daughter, Keira, who was born in December 1997. He separated from the mother in 2004 and Keira lived with her mother until she began attending college near her father, when she began to live with him during the week.

  2. On 12 August 2011 the appellant was sentenced to a term of 4 years imprisonment for possession of class A controlled drugs, heroin and cocaine, with intent to supply. He was also subjected to a confiscation order of some £20,900 and is paying off the sum due.

  3. On 28 June 2013 a Deportation Order was made by the Secretary of State under s. 32 (4) of the UK Borders Act 2007 and s. 3(5) (a) of the Immigration Act 1971 on the basis that his removal was conducive to the public good. Mr Forrester immediately appealed against the order on the grounds that it disproportionately interfered with his family and private life. Thereafter the appeal has had something of a chequered history. It was upheld by the First Tier Tribunal (``FTT'') before FTT Judge Lester and a non-legal member on 13 December 2013 but an appeal to the Upper Tribunal (``UT'') was successful on the grounds that the FTT had not given adequate weight to the public interest in the deportation of serious criminals. The case was remitted to a differently constituted FTT. It came before FTT Judge Gibb. The parties agreed that the original primary findings of fact made by the Lester Tribunal should stand, and on the basis of those findings and other evidence, FTT Judge Gibb allowed the appeal in a decision dated 1 May 2015. The Secretary of State appealed that decision too and was again successful. In a decision dated 2 February 2016 UT Judge Smith set aside the FTT decision on the grounds that it had been based on a material error of law. Given that there were no disputes as to fact, she retained the decision and made a fresh determination, dated 6 July 2016, following a reconvened hearing with Deputy UT Judge Hill QC. In that decision the UT held that there was no legal justification for setting aside the Deportation Order. Mr Forrester now appeals those two inter-related decisions. In essence his case with respect to the first is that there was no material error by FTT Judge Gibb and therefore no proper legal basis for UT Judge Smith to set aside his decision. With respect to the decision at the reconvened hearing, Mr Forrester submits that the UT reached a decision which it was not entitled to reach.

    The relevant legal provisions

  4. The considerations which need to be taken into account when determining whether a decision made under the Immigration Acts will breach a person's article 8 rights are set out in Part 5A of the Nationality, Immigration and Asylum Act 2002. Section 117B sets out the considerations which are relevant in all cases where the issue arises whether the public interest in immigration control justifies the interference with a person's article 8 rights. They include, for example, the fact that it is in the public interest that a person should speak English and be financially independent. Section 117C, which is central to this appeal, identifies additional considerations which are relevant in cases involving foreign criminals. That section, so far as is material, is as follows:

    ``117C Article 8: additional considerations in cases involving foreign criminals

    (1) The...

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