Case No: C5/2010/0372
Neutral Citation Number: [2010] EWCA Civ 1012
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: IA/11269/2008]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Monday, 26th July 2010

Before:

LORD JUSTICE SEDLEY

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Between:

	WD (JAMAICA)	
Appellant	
	- and -		
	
SECRETARY OF STATE FOR THE HOME DEPARTMENT	

Respondent	

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(DAR Transcript of 
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THE APPELLANT APPEARED IN PERSON.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.

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Judgment

Lord Justice Sedley:   

1.	This is a renewed application by an applicant, whom I will continue to call WD because he has fears, which may be genuine, for his safety if he is returned to Jamaica, the country of which he is a national.

2.	The applicant entered this country in April 2002 on a six-month visitor’s visa.  He overstayed and is still here eight years later.  He was, however, arrested in October 2003 as an overstayer and detained but released on bail.  He sought to stay on human rights grounds.  The refusal was appealed and dismissed in March 2006.  By then the applicant had been arrested ‑‑ in fact in September 2005 ‑‑ and shortly afterwards was convicted on his plea of guilty in a London Crown Court of possessing with intent to supply a Class A controlled drug, namely crack cocaine.  For this he was given two years’ imprisonment.

3.	It can be said that two years is the lower end of the scale of possible sentences for dealing in drugs of this class.  I have read the sentencing remarks of His Honour Judge Smith who began by saying:
 
"…being concerned in the supply, even to an undercover officer, with a small amount of a deal ... is a very serious matter."
 
4.	The judge went on to remind the applicant of the social misery that drug dealing creates.  But he accepted that the applicant had pleaded guilty at the earliest opportunity and that, given that and the other extenuating factors, his sentence would be one of two years.

5.	It is in consequence of that conviction and sentence alone that an order for deportation has been made against the applicant.  He has failed in his appeal against it and it is against that decision that he now seeks permission to appeal.

6.	The AIT has refused permission and so has Stanley Burnton LJ in a written decision which takes the view -- and for reasons that I am going to come to, it is a view I share ‑‑ that everything that the applicant may object to, for perfectly good reason, is a finding of fact for the tribunal and not a finding contaminated by any error of law.

7.	It was accepted for the applicant that a deportation order was properly made and it was accepted by the Home Office that, that being so, it nevertheless remained for the tribunal to decide whether it would be contrary to Article 8 of the European Convention on Human Rights to deport him to Jamaica.

8.	I turn straight to the grounds of appeal which, although the applicant has appeared in person today, were drafted for him by the organisation Refugee and Migrant Justice and which, if I may say so, put at the very best and highest what can be said on his behalf in seeking to show an error of law.

9.	First it is said in Ground 1 that the tribunal wrongly made an assessment of the applicant's criminality pursuant to section 72 of the Nationality, Immigration & Asylum Act 2002.  It is correct that in paragraph 43 the tribunal deal with section 72 but they deal with it correctly by pointing out that the Home Secretary in his refusal letter, 16 November 2007, had made the completely unnecessary point of applying section 72 to the applicant where section 72 has no relevance to him at all.  Section 72 has to do with asylum seekers and the possible criminality of asylum seekers.  The tribunal rightly pointed out that it was neither here nor there as far as the applicant was concerned.

10.	So I turn to Ground 2.  Ground 2 is that the applicant had made it part of his Article 8 claim that he faced persecution because of his bisexuality if he was returned to Jamaica.  He is now ‑‑ and I will be coming to this in a moment ‑‑ in a heterosexual relationship which he considers permanent and appears to no longer have the inclination to have homosexual relations as well.  That is how he puts his case.  But, he says, he has been attacked in the past in Jamaica for his associations with other men and he would be at the real risk of that happening again if he were returned to Jamaica.

11.	What the tribunal did was note first of all that the applicant had not made a claim based on bisexuality or based on being attacked for it in Jamaica until after his first asylum claim had been rejected and the appeal heard and dismissed.  He has to live with the fact that a late claim of this sort loses something in credibility.  Beyond this they accepted that he had been attacked in Jamaica but not that it was because of his bisexuality.  That was, I am afraid, a matter for the tribunal and raises no question of law for this court.

12.	The third ground is that the tribunal had made an unfair and biased assessment of medical evidence which suggested to them that the applicant had resumed cocaine use in some degree.  The applicant has been able since to submit medical evidence, which was not before the tribunal and therefore was not part of their reasoning but which he would wish to rely on as showing that it was wrong to infer that he has been making any new use of cocaine.  Stanley Burnton LJ took the view that this evidence was not conclusive on the point and I have to say that I agree with him about that.  The question is not what the new evidence now shows but what the evidence before the tribunal showed.

13.	They found from paragraph 54 onwards that the medical evidence and scientific evidence which they considered over quite a considerable part of their decision did not clear the applicant.  They concluded:

"Assessing the evidence we have, in the round, we do not accept the appellant's explanation [that he had been in the company of other cocaine users] and find that he has resumed taking cocaine.  Also, on his own admission, he has been associating with a man who uses cannabis in a house where he knew that cocaine was being used.  This finding leads us to the conclusion that there is a risk of re‑offending.  As the applicant has resumed taking cocaine he will have to fund this with the inevitable temptation to deal or resort to other criminal activities."

14.	This was a finding which had to be added to the fact recorded by the tribunal that the pre‑sentence report on the applicant has concluded that his risk of re‑offending was low.  The further finding of the tribunal does not suggest that it is any higher than was found in the pre‑sentence report, only that it was real, in other words that it could not be said that the risk was a negligible.

15.	The fourth ground is that the tribunal failed to give sufficient weight to the fact that the sentence had been only of two years and also erred in giving weight to an assumption that he had committed other offences.  I do not think that the latter criticism is justified.  What the tribunal found in paragraph 53 was:

"Apart from the conviction which led to the respondent's decision the appellant has no other convictions, although he did receive a caution for possession of cannabis."

That is fair and factual.  This ground also places reliance on the fact that when they came to weigh up everything the tribunal found that the balance was a fine one.  That of course is important because it means that if there was any arguable error of law, however minor, or indeed any misappreciation of fact capable of influencing the balance, the case might be one for reconsideration.  So far however I have not been persuaded that there was any such error.

16.	The last ground, Ground 5, is the failure adequately to consider the Article 8 rights of the applicant's children.  This is a very important part of any Article 8 case.  But the applicant's situation was broadly this.  He has two children by a former partner from whom he is estranged and he has at present no contact with those children.  He was at the time of the tribunal hearing in the process of seeking to establish formal or informal contact with them.  His present relationship is with Ms Aitken, to whom he is now married and by whom he has a child who is a year and three weeks old.  The tribunal was quite clear, and I would agree with them, that Ms Aitken was right when she said that there is no real question of her moving to Jamaica with the applicant if the applicant was deported.  That fact confronts any tribunal with the considerable difficulty that if they order deportation they are going to break up the family that the applicant is part of.  There is no doubt that that is what was being evaluated by the tribunal when it took its decision.  

17.	There is, of course, as the grounds stress, a child as well.  The fact, however, is that a child who is a year old, while no doubt having a good relationship with the father, is not going to be affected in the way that a four or five-year-old is by finding the father suddenly taken out of the child's life.  It matters a very great deal nevertheless that a child is going to be effectively condemned to grow up without a father, but that is something which this tribunal took into account.  It was the very basis upon which they proceeded when they found that the wife and child could not reasonably be expected to move to Jamaica with the applicant.

18.	So it was in this context, in this situation, on those findings of fact that the tribunal came to what it admitted was a finely balanced conclusion that it was not disproportionate in all the circumstances to deport this applicant to Jamaica.

19.	I have tried very hard to find an arguable error of law which might give him a chance to try to persuade a full constitution of this court that his case should be heard again.  I am very much aware that if I refuse permission to appeal this is his last stop, but with the best will in the world I am unable to find the beginnings of any error of law that might make it possible for this court to intervene.  The decision was a carefully taken one on properly admissible grounds.  I am sorry to say it, but my only option is to refuse permission to appeal on this case.  That is what the order of court will be.

Order: Application refused