It took us five years but we did it!
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The appellant was an overseas national who made an application to revoke a Deportation Order made against him in 2007. He was convicted of possession of a Class A controlled substance with intent to supply and was sentenced to six years imprisonment. He appealed the decision against the Deportation originally, but the appeal was dismissed. A High Court review was refused and he was deported back to his country of origin. He returned to the UK unlawfully and has remained here ever since.
In 2015 we were instructed to request that the Deportation Order against him be revoked and for him to be granted Leave to Remain on the basis of his family’s rights under Article 8 of the European Convention of Human Rights. This was twice refused without a right of appeal. We brought applications for Judicial Review twice for those decisions which were both settled by Consent.
In 2017 the Home Office made their final refusal to revoke the Deportation Order and we appealed. The appeal was heard in January 2020 and dismissed. This determination dismissing our case was overturned by an Upper Tribunal Judge in July. The matter came for a full hearing in November 2020, this time via the Cloud Video Platform.
The basic facts of the case are that the appellant had a strong family life in the United Kingdom, he lived with his partner and their children and the children are all now British citizens. The interesting part of this case is the delicate balance between how the Secretary of State should protect individual rights under Article 8 against the competing public interest in deporting criminals.
Several general guiding principles emerged in this case.
- The deportation of foreign criminals is in the public interest.
- Each case is to be decided on its particular facts, and comparison to the facts in other cases is likely to be unhelpful.
- Although the best interests of children carry great weight. it is not usually sufficiently compelling circumstances to outweigh the high public interest in deporting foreign criminals.
- In applying the test set out above, it is appropriate to have regard to the jurisprudence of the European Court of Human Rights in Strasburg.
- In the context of deportation the question is what will be considered unduly harsh consequences. Unduly harsh means something more than unreasonable or undesirable and less than very compelling reason. Harsh means something severe or bleak.
In this case we knew that the Courts always treat drug related offences as being at the more serious end of the criminal spectrum, however, it is just one factor which has to be weighed on the balance with other criteria. Our submissions were that the consequences for the family of the appellant’s removal would be catastrophic, hence meeting the test of very compelling or very exceptional circumstances. We provided medical evidence from a consultant psychologist three times. She met the family on three occasions and diagnosed the various family members with mental illness. In addition , we provided school and medical reports and the only position of the Secretary of State in relation to these overwhelming medical reports was that support would be available to the family from the NHS and the family can maintain contact with the appellant through “modern means of communication”. However, the Home Office representatives acknowledged that the appellant’s situation has changed significantly over the past 14 years. The Immigration Judge gave considerable weight to the psychologist’s report and it became clear that previous refusals of the Home Office to grant the appellant’s applications (in spite of the reports’ recommendations) were based not on the rejection of reports, but on her understanding that the circumstances were not deemed as very exceptional, so as to outweigh the significant public interest in our client’s deportation.
The judge found that the appellant had an exceptionally strong family life with his partner and children and they are exceptionally dependent on their parents’ support, such that there can be no doubt that they continue to have family life for Article 8 purposes.
The Judge found that removing the appellant would have a devastating effect on this family relationship because of their vulnerabilities. Given that the appellant committed an offence almost 20 years and has committed no offences of a similar kind or gravity since then, on balance, the Immigration Judge found that the circumstances of the family are very compelling and exceptional and the appeal was allowed on human rights grounds.