Government prevails over sexual offender in Court of Appeal

Secretary of State for the Home Department v Starkey [2021] EWCA Civ 421 (26 March 2021)

In the SSHD’s appeal against a decision of the UT overturning a deportation order made in respect of Mr Deon Starkey, the Court of Appeal decided that in determining appeals which turned on whether there were very compelling circumstances within the meaning of section 117C(1) of the Nationality, Immigration and Asylum Act 2002 which meant that a convicted sex offender who was suffering from paranoid schizophrenia should not be deported to South Africa, both tiers of the Tribunal had erred in their consideration of the evidence as to the difficulties that the offender might face in terms of securing work and appropriate medical treatment in South Africa. Mr Starkey suffered from paranoid schizophrenia which was controlled by a drug of last resort, Clozapine. Other drugs had been tried over the years, but had not controlled his symptoms. Those taking Clozapine need regular blood tests to monitor their white-cell count. He was 45 years old. He arrived in the UK a young child aged two, although the Home Office could not verify his arrival from its own records. The evidence suggested that he had been living in the UK since 25 October 1977 and was taken into care in 1982. He stayed in care until he was an adult. He had applied for indefinite leave to remain which was granted in February 2001. Mr Starkey was convicted of two counts of indecent assault on a female under 14, three counts of gross indecency with a child under 16, and one count of rape of a female who was less than 16 years old.

In 1987 he was convicted of three counts of burglary/theft and was given a supervision order for two years. He was sentenced to eight years’ imprisonment and he was required to register on the Sex Offenders Register for life, and banned from working with children for life. He was also kept in detention under immigration powers after the Parole Board authorised his release and a decision was served on him which wrongly stated that he only had an out-of-country right of appeal. He was deported to South Africa in 2017 but was not admitted since his escorts had not brought an emergency travel document which had been issued to him and he was then admitted to the UK for the necessary documents to be obtained. Removal directions were set in 2018 but cancelled when he was admitted to hospital. Earlier on in his life, he had been diagnosed with paranoid schizophrenia after a breakdown. He said that he had serious issues with his mental health over the years. They peaked in about 2009, when he tried to commit suicide. Voices in his head induced him to harm himself. He slashed his wrist once, in front of his mother, was taken to hospital but quickly discharged. The voices got worse, and he again tried to take his own life and he jumped off a bridge into the River Thames. The SSHD wished to deport him and argued that he was 45 years old and could live an independent life in South Africa and reintegrate there as nothing prevented him from doing so.

The Tribunals

He appealed to the FTT, arguing that there were very compelling circumstances within the meaning of section 117C(6), outweighing the public interest in deporting him. He pointed to his integration in the UK, a lack of family and support system for him in South Africa, his mental illness and he claimed a lack of adequate treatment and monitoring available to him in South Africa. The FTT dismissed his appeal and upheld that decision to deport him and found that there was “no satisfactory evidence” to suggest that the treatment which he needed would not be immediately available should he be deported. Mr Starkey appealed and the UT set aside the FTT’s decision on the ground that it had materially erred in law in its approach to the evidence. Re-making the decision, the UT decided that Mr Starkey would have little chance of integrating in South Africa. The UT decided that his mental illness and vulnerability meant that he would face inhuman and degrading conditions in South Africa. The UT said that there were very compelling circumstances outweighing the public interest in deporting him from the UK. The SSHD appealed on two grounds (i) the FTT made no material error of law in dismissing the appeal; the UT erred, therefore, in setting aside the decision of the FTT and in substituting its own decision and (ii) in any event, the UT itself erred in law in its approach to the application of section 117C(6); it failed to recognise that the threshold created by that exception is very high and reached a decision which was not justified on the evidence.

The Court of Appeal 

Dingemans, Lewis and Elisabeth Laing LJJ allowed the SSHD’s appeal. They found that both the FTT and UT got it wrong. The FTT materially erred in law in two ways. First, it was clear from the expert evidence that there was some doubt about whether the regular blood monitoring needed by people taking Clozapine was available in the South African public health system (upon which Mr Starkey was likely to have to rely). Laing LJ held that:

90. … The FTT did not refer … to this requirement for regular monitoring, or to that doubt. That was a material omission from an otherwise full and accurate summary of the relevant evidence.

The second flaw in the FTT’s approach was its conclusion that there was “no satisfactory evidence” that treatment would not be immediately available was ambiguous. If it meant that there was no evidence, that was materially inaccurate and if it meant that there was evidence which it considered unsatisfactory, it should have explained why. Either way, the FTT’s use of that formulation was an error of law. The UT was therefore right to set aside its decision. 

Next, as to the UT’s re-made decision it was clear from its decision that it had understood, correctly, that the test under section 117C(6) was very demanding. But on the other hand, the more demanding the test, the more important it was to marshal the relevant factors on each side so they could be balanced against one another. 

The UT misunderstood the evidence about the nature of Mr Starkey’s illness when it was controlled by medication. It appeared to think that, even with a supply of medication, Mr Starkey would have great difficulty in finding a clinic and a job in South Africa whereas the evidence showed Mr Starkey’s illness was stable when controlled by medication, and that he was working throughout his time in prison and had also gained various vocational qualifications. Laing LJ therefore judged:

94. That misunderstanding is an essential foundation of the UT’s reasoning about what would happen to Mr Starkey on his return. It means that the UT’s conclusion that the demanding test in section 117C(6) was met cannot stand. 

96. I would allow the appeal of the Secretary of State on ground 2 and remit the appeal to FTT for it to consider it again in the light of any up-to-date evidence which the parties wish to rely on.

Anonymity

As to anonymity, her Ladyship endorsed Dingemans LJ’s point in argument that the Court of Appeal (Criminal Division) does not anonymise defendants in appeals regarding sexual offences, as it is clear that the victim of a sexual offence is, independently, entitled to life-time anonymity, pursuant to section 1 of the Sexual Offences (Amendment) Act 1992

She therefore considered that this was a case in which it was not necessary to anonymise Mr Starkey because it was impossible to understand the arguments in this appeal without an exposition of the medical evidence. The serious crimes committed by Mr Starkey, and the open justice principle, outweighed any article 8 considerations in his case. For those reasons, the Court of Appeal refused continue the anonymity order made by the UT.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Appeals, Article 8, Court of Appeal, Deportation, Permanent Residence, Settlement, Sexual Offences, South Africa and tagged , , , . Bookmark the permalink.

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