A UK Court of Appeal judge has criticised the Home Office for delays in dealing with the expulsion of a convicted Jamaican drug dealer which could increase his chance of staying in Britain. A decision to deport the man, known as KD, was made in 2007 after he served a five-year sentence for dealing in class A drugs. But failings by the Home Office mean he is still in the UK with an improved chance of remaining as time passes.
The Upper Tribunal (Immigration and Asylum) had ruled that his deportation would breach his Article 8 family rights because he had had a relationship with a British woman since 2001 and they had three children. Now Lord Justice Richards in the Court of Appeal has granted the Government a right to appeal against that judgment – but said “the passage of time is likely to strengthen rather than weaken the respondent’s Article 8 claim in the event that the matter falls to be decided afresh”.
Problems in the procedure started because the Home Office failed to serve the deportation order on KD in 2007. The Secretary of State had treated KD’s Article 8 application for leave to remain as if it was an application to revoke the non-existent deportation order – and had rejected it.
The case had gone to the First Tier and then Upper Tribunals on this basis. But since there had been no such order, the Secretary of State’s first grounds of appeal in the latest appeal was, bizarrely perhaps, that “the Tribunals had no jurisdiction to entertain an appeal from the purported refusal to revoke the deportation order”. That is, the Tribunals should not have treated the application for leave to remain as an application to revoke the deportation order – even though the Home Office had done so.
This had become the grounds for the latest appeal at a very late stage, complained Richards. He said:
“All of this is, on any view, profoundly unsatisfactory, especially when the Secretary of State has only herself (or, more accurately, her officials) to blame for what has happened; and a realisation that something has gone wrong has come very late in the day, the point being raised for the first time by amendment to the grounds of appeal on the application to this court.”
Further delays in the application for permission to appeal had compounded matters. The Secretary of State’s appeal was lodged in January 2014; a hearing listed for January 2015 had to be adjourned because of a lack of judicial availability; and the latest hearing was in July. Richardson said: “let me acknowledge the force of the concern that [KD] has expressed about how long this process has taken overall and the effect it has had on him.”
It is difficult to understand why the Home Office is pursuing this case. Admittedly it has unappealing elements: KD has been an overstayer since 2000; he was convicted of supplying Class A drugs (though he has appealed for the crimincal judgment to be set aside); and the facts of this case are far from unique, with Article 8 claims from convicted criminals being all too common. Which is why Theresa May sought to tighten immigration rules in 2012 to tip the balance against applicants such as KD.
But perhaps she should stop throwing good money after bad with this particular case. Richards allowed her application for an appeal with some reluctance, acknowledging further delay will occur after some very complex technical arguments before the Court of Appeal – which don’t come cheap. He made it pretty clear that chances of the Home Office succeeding were limited particularly as the longer KD remains, the stronger his Article 8 claim.
Indeed, Richards even considered ordering the Secretary of State to pay KD’s costs. This suggests her victory in being granted a right to an appeal was on grounds of such a technical nature that the interests of justice are barely served. (The Secretary of State had had the decency to make clear that she would not seek costs from KD if her appeal against him succeeded). Surely there are better causes for Home Office time and money?
The application: Secretary of State for the Home Department v KD (Jamaica)
(Thanks to Bailii)
Judge fails to release foreign sex-offender shock
Theresa May’s meaningless statement on immigration rules
Also further material on May’s wrangling with Article 8 is here: May’s immigration rules
Background on Article 8
(courtesy Francesca Klug, LSE:
Deportation and the right to respect for private and family life pdf
The new 2012 Immigration Rules sought to restrict Article 8 claims in legal action to revoke deportation orders thus:
(a) the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK, and
(i) the child is a British Citizen; or
(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case
(a) it would be unduly harsh for the child to live in the country to which the person is to be deported; and
(b) it would be unduly harsh for the child to remain in the UK without the person who is to be deported; or
(b) the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and
(i) the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
(ii) it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
(iii) it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.
399A. … if – (a) the person has been lawfully resident in the UK for most of his life; and
(b) he is socially and culturally integrated in the UK; and
(c) there would be very significant obstacles to his integration into the country to which it is proposed he is deported.
See Immigration Rules: Part 13 (pdf)