Using children to stop deportation: Part 1

Sanade and others (British children – Zambrano – Dereci) [2011] UKUT 48 (IAC) (07 February 2012)

This Upper Tribunal (UT, President Blake and Judge Jordon) case was about three fathers, the appellants, who relied on their family, especially British children, to remain in the UK. All three men were criminals. They were married to British women and had minor children who were British citizens. One was a sex offender and the other two were suppliers of class A drugs. The sex offender got to stay, but the drug dealers, who lost, were no match for the law (as applicable within the meaning of the automatic deportation provisions of the UK Borders Act 2007).

Other concerns aside, the principal question in these proceedings was whether the deportation of any of these three appellants requires their minor children to give up their residence in the European Union?

The facts of each appellant’s case can be summarised as follows.

Mr Milind Manohar Sanade (S)

S is an Indian national. He entered the UK as a student and then went on to become a nurse. He was a convicted of a sexual offence while in that job. His wife, Mrs S, also a nurse originating from India, entered as a student and acquired British nationality. The couple have two children – P and N.

The crime: when a distressed woman concerned about having breast cancer attended the hospital, S pretended to examine her by making her expose her breasts and by running his hands under her shirt and over her body, whereas he was doing so to get sexual pleasure out of feeling her up; this was aggravated by S telling his victim to not report his behaviour. He falsified the record to undermine her story. He had also received a previous caution for assaulting an elderly patient under his care; see full facts at [5]–[7], [97]–[111]. It has been reported in the press that S’s victim was pregnant at the time (as was his wife with their second child). S pleaded guilty to the charges of an indecent assault on a patient – subsequently a sexual offences prevention order (SOPO) was made against S and he was sentenced to twelve months’ imprisonment and struck off the register of nurses. The UT allowed S’s appeal against deportation.

Mr Damion Harrison (H)

H, a Jamaican national, entered the UK as a visitor and extended his stay as student and, later, as the spouse of a British national (ultimately acquiring settlement rights under the marriage route 2003).

The crime: soon afterwards in 2004 he pleaded guilty to charges of conspiracy to supply class A drugs (cocaine) and possession of a taser stun gun for which he received seven years’ imprisonment and he was recommended for deportation. When an asylum application – made while serving his sentence in 2007 – based on gang related persecution in Jamaica could not help him, H relied on his rights to a family and private life to resist his deportation; see full facts at [8]–[11], [112]–[122]. H – who had relationships with three women Donette (D), Chantelle (C) and Kelly (K) – had a pretty complicated personal life.

H fathered two children, in 1996 and 1999, with D but she did not want anything to do with him. Nothing turned on this in UT proceedings. H’s marriage to C in 2000, which produced no children, ended in 2002 but he concealed its breakdown from the Home Office and acquired settlement rights. This was so despite Kelly (his present partner) already being pregnant with their first child (who was born in May 2002) in August 2001. The couple’s other two children were born in March 2010 and May 2011. Following his release on bail after 4 years in detention in November 2007, H “played an active an positive role in their lives” while Kelly worked full time. The UT dismissed H’s appeal against deportation.

Mr Conroy Maurice Walker (W)

W, also a Jamaican, entered the UK as a visitor in 1996 (when he was 25) – and overstayed – and he has had relationships with two women. Firstly, his relationship with Julie-Ann Smith (JAS), his present wife who he met in 1989 in Jamaica, has produced four children  – two of whom were born in the UK and the other two in Jamaica. (Please note that the couple’s eldest child is called “W” in the determination but in this post W refers to Walker.)

However, W also conveniently married another woman in 1997 to try to obtain settlement rights but investigations revealed his bogus intentions. W and JAS married in March 2003. Prior to this they lived together in the UK. Initially W entered the UK in December 1996 to bring his second child to live with his British maternal grandmother and JAS joined them later with the eldest child in 1997. When W’s marriage of convenience failed to get him a visa, in 2003 he made an application for a spouse visa on the strength of his second marriage to JAS – the application was ultimately refused in 2007. See full facts at [12]–[21], [123]–[128].

The crime: W had been warned and cautioned for theft and kindred offences in 1998, possession of cannabis in 2002, and possession of a bladed object in 2005. In 2007 he was convicted of possession of class A drugs with intent to supply and sentenced to five years’ imprisonment. The sentencing judge described W’s enterprise as peddling in “misery and degradation”. The UT dismissed W’s appeal against deportation.

History

Recognising that the there had been errors of law by the First-tier Tribunal (FTT) because of a failure to examine the best interest of children pursuant to ZH (Tanzania) v SSHD [2011] UKSC 4, the UT remade the decisions. S and H, who both raised Article 8 to fall into the first exception (see below), were caught by the automatic deportation provisions of the UK Borders Act 2007 which apply if a person receives the requisite sentence after 1 August 2008 or is in custody under such a sentence at that date and has not as yet been served with a notice of deportation. Since W’s deportation order pre-dated the UKBA 2007, he therefore, relied upon section 82(2)(k) of the Nationality Immigration and Asylum Act 2002 to revoke his removal.

Section 32 of the 2007 Act requires that if convicted of an offence a foreign national criminal should be deported automatically where this is conducive to the “public good” if he receives a term of imprisonment greater than 12 months and is a “serious criminal” as specified by order. Section 33 sets out the statutory exceptions. All three men resisted automatic deportation by relying on the exception that their removal breached the UK’s human rights obligations.

The SSHD position was that automatic deportation would only breach Article 8 in “exceptional circumstances” because it would be “rare” that Article 8 would outweigh the public interest. But the UT declined to follow this proposition because of (a) the general scheme of the provision; (b) consideration of the relevance of a twelve-month sentence to the other related exceptions; and (c) previous binding authority.

Despite negative results for H and W, it’s fascinating to read some of the things which were said within proceedings such as the Court of Appeal’s view (Sir Richard Buxton) when granting W permission to appeal to the UT. Despite W being “an obvious candidate for deportation” it did not follow “that his deportation cannot be stayed, however, unmeritoriously because of its impact on family … the Tribunal should have considered the practical impact of the deportation decision on the right of abode of the children as British citizens” because an adult could choose to leave with their deported spouse but it would be totally wrong to “assume that a child must forfeit that right as a result of a family decision following from a deportation order.”

But despite such interim generosity W could not have his way and stay …

Please see Part 2 for more.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 8, Automatic Deportation, Blake J, Cases, Children, Tribunals, UKBA 2007 and tagged , , , . Bookmark the permalink.

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