DM (Jamaica) v Secretary of State for the Home Department

A grant or extension of leave after a conviction does not prevent the Secretary of State from later considering deportation, particularly where the person has not relied to his detriment on the earlier decision. Removal or exclusion of one family member does not necessarily breach Article 8 where the family can live together in the country of origin and there are no insurmountable obstacles, even if relocation causes hardship. Serious criminal conduct is a material factor supporting deportation. Decision-makers must consider family circumstances, including long residence and children, but careful consideration may still justify removal.

These were two renewed applications for permission to appeal from decisions of the Asylum and Immigration Tribunal concerning the deportation of a Jamaican national convicted of possessing heroin with intent to supply and sentenced to three years’ imprisonment. The appellant argued that a later extension of his leave prevented the Secretary of State from subsequently considering deportation. He also argued that deportation and the resulting exclusion of his partner and children from family life in the United Kingdom breached Article 8. The central issues were whether the deportation decision remained open to the Secretary of State and whether the Tribunal had properly assessed the family consequences.

The Court of Appeal refused the renewed applications for permission to appeal.

1. A later grant or extension of leave did not deprive the Secretary of State of the opportunity to decide whether deportation was appropriate after the appellant’s conviction. There was no detrimental reliance because the appellant had remained in custody.
2. The Tribunal had carefully considered the appellant’s criminality, long residence and family ties. The relevant Article 8 question was not whether deportation would cause hardship, since some hardship was inevitable, but whether there were insurmountable obstacles to the family continuing their life together in Jamaica. The approach stated in Mahmood v SSHD [2001] 1 WLR 840 was applied.
3. The hardship resulted ultimately from the appellant’s serious criminal conduct. The Secretary of State was entitled, and had a duty, to consider whether a serious offender from abroad who was present on restricted terms should remain in the United Kingdom.
4. The Tribunal had referred to both children. The son’s absence of misconduct did not prevent his inclusion within the deportation order as the appellant’s dependent. His exclusion, resulting from the deportation order against his father, did not establish a breach of Article 8. The observation that a later return as a young adult would probably cause no real detriment was hypothetical and unnecessary to the decision.

Nothing advanced disclosed realistic prospects of success before the full court. Order: application refused.

• Court of Appeal (Civil Division): Refused the two renewed applications for permission to appeal.
• Asylum and Immigration Tribunal: Decisions in AIT Nos IA/09541/2006 and IA/11352/2006 upheld the Secretary of State’s deportation decision.