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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> J -v- His Excellency the Lieutenant Govenor [2018] JRC 072A (18 April 2018) URL: http://www.bailii.org/je/cases/UR/2018/2018_072A.html Cite as: [2018] JRC 72A, [2018] JRC 072A |
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(Samedi)
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Before : |
Sir William Bailhache, Bailiff, and Jurats Nicolle and Pitman. |
J
-v-
His Excellency the Lieutenant Governor of Jersey
Advocate R. C. L. Morley-Kirk for the Applicant.
Advocate S. A. Meiklejohn for the Respondent.
JUDGMENT
THE BAILIFF:
1. On 23rd October, 2017, the Applicant sought leave to apply for judicial review in relation to the decision of the Respondent on 24th July, 2017 to deport the Applicant from the Bailiwick of Jersey. On 24th October, the Court granted the Applicant leave. Affidavits have been filed in accordance with the Royal Court Rules 2004 and a date fixed for hearing. Although the issue is arguably one of law, I decided to sit with Jurats because, as will be apparent from this judgment, the case raises questions of proportionality and human rights - see Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 at paragraph 23. Indeed, the parties were agreed that it was appropriate that the Court be so constituted.
2. There is no right of appeal against the decision of the Lieutenant Governor and judicial review is therefore the only basis upon which the Applicant can have the decision examined by an independent tribunal. That being so, although it is a question of judicial review, the ambit of the examination is wider because the Human Rights (Jersey) Law 2000 requires that a decision affecting the human rights of the Applicant must ultimately be taken by a human rights compliant tribunal. See also De Gouveia v Lieutenant Governor and Minister for Home Affairs [2012] (1) JLR 291 at paragraph 23. The Court on judicial review, as it were, fills the gap which otherwise exists from having no human rights compliant tribunal to which the Applicant can appeal from the Respondent's decision. Although these statements are of direct relevance to judicial review in deportation cases, they have a wider significance. On occasion the courts have to consider the reasonableness of a decision by a minister that may expressly have been considered by the States. Where, for example, a minister has delegated power under a piece of primary legislation to make an order, which is tabled before the States and may in some cases be debated, the fact that the order has been approved by the States is no bar to an examination by the court of its compatibility with the Human Rights Law and indeed it is the duty of the Court in such a case to apply a full Human Rights review to what the minister has set out in his or her order, just indeed as there would be a full review as to whether the order fell within the vires of the primary legislation. The fact that the same process would apply where Regulations, also secondary legislation, are challenged in court, demonstrates that the approval by the States of a piece of secondary legislation does not inhibit the duty of the courts to investigate the lawfulness of such legislation. This is consistent with the comments of Lord Phillips of Worth Matravers MR in R v Secretary of State for the Home Department ex parte Brind 1991 1 AC 696 when he said:-
3. In Huang v Secretary of State for the Home Department [2007] UKHL 11, the House of Lords took the same approach in relation to the submission of the Secretary of State that the decision taker and the court should assume that the immigration rules adopted by the responsible minister and laid before parliament "had the imprimatur of democratic approval and should be taken to strike the right balance between the interests of the individual and those of the community". Political and legal authority are to be distinguished, and the doctrine of judicial deference does not mean that the courts should surrender their own fundamental responsibility to determine the lawfulness of what is in question in the case. We make these comments because the powers and duties of the Lieutenant Governor in relation to deportation have been passed to the Minister for Home Affairs, and we make it plain that the identity of the decision taker makes no difference to the approach which the Courts will take in relation to these matters.
4. It is for these reasons that the traditional Wednesbury standard of unreasonableness - was the decision of the decision maker so unreasonable that no reasonable decision maker could reach it? - is inappropriate where the decision under review engaged a fundamental right or important interest. Where that is the position, the decision does indeed engage the most anxious scrutiny of the courts - see Bugday Cay v Secretary of State for the Home Department [1987] AC 514 at 531 per Lord Bridge. As Sir Thomas Bingham MR (as he then was) put it in R v Ministry of Defence ex parte Smith [1996] 1 All ER 257, the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable. In R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at paragraph 37, the Court of Appeal said that:-
5. There are nonetheless constraints upon the Court's powers to intervene. First of all, the Court is not a fact finding body in this exercise. It takes a given set of facts and applies the relevant legal tests to them. Of course, one such legal test may involve consideration of a submission that the decision taker has proceeded on the wrong facts, but it seems to us that it would be very rare and highly exceptional that any evidence other than affidavit evidence would be considered by the Court on such applications. Secondly, it is not correct to say that there is no deference to the decision taker. A higher degree of scrutiny on human rights grounds is still not a full merits review. What is needed is that the Court examine what reasons have been given, whether they comply with the fundamental rights of the applicant and in particular whether the lawfulness of what has been done meets the structured proportionality test that the Courts now apply, recognising that the decision taker has a discretionary area of judgment.
6. In the written submissions filed by the Applicant, a number of points consistent with the assertion that the Respondent's decision was in breach of the Applicant's right to respect for his private and family life under Article 8 of the European Convention on Human Rights were made, all of which caused no difficulty in the sense that human rights arguments were canvassed in the application to leave to commence judicial review proceedings made in October 2017. However the written submissions also include criticism of the process that led to the decision which it is contended constituted a breach of natural justice. The criticisms involve an alleged failure to present to the Applicant in a fair and transparent manner new factors said to have been taken into account by the Respondent and which were unknown to the Applicant. The Respondent denies the process was in breach of natural justice but also objects to the introduction of this material on the grounds that it is inconsistent with the application for leave.
7. Rule 16/5(1) of the Royal Court Rules 2004 provides that
8. We have considered the objection and we have resolved to grant the Applicant leave to amend his statement by specifying the additional grounds that the process involved a breach of natural justice. We have done so for these reasons:-
(i) In the affidavit sworn on 26th January 2018 and furnished to the Respondent, Mr Gregory Herold-Howes (an English solicitor) employed by Messrs Viberts, on behalf of the Applicant, made reference to the concern that the failure to allow the Applicant to challenge the material collated by the Customs and Immigration Service ("the Service") that was used to produce the deportation report on which the Respondent acted amounted to a breach of natural justice. In the circumstances, the Applicant rightly says that the Respondent had formal notice of this additional ground at that time. No objection however was raised by the Respondent until the submission of his written contentions on 7th March, 2018. In our judgment, the Applicant should have made an application at an earlier stage, pursuant to Rule 16/2(10) for leave to amend the statement by specifying additional grounds of relief, but nonetheless the Respondent is not prejudiced because the Customs and Immigration Service have had adequate notice to consider the point raised.
(ii) Secondly, the point raised is an important one in principle on which the Court should express a view - it raises a point of general principle, against which the particular facts of this case can be considered. In the circumstances the Court has given leave to the Applicant to run these additional arguments.
9. The Applicant is a Portuguese national having been born in Madeira on 20th April, 1991. He moved to Jersey when he was four years old and has lived in the Island since then. He is classed as permanently entitled under Article 2(1)(c) of the Control of Housing and Work (Residential and Employment Status) (Jersey) Regulations 2013. A letter formally confirming this to be so on behalf of the Assistant Chief Minister was sent to the Applicant at Her Majesty's Prison La Moye on 21st September, 2016.
10. On 17th December, 2015 the Applicant was sentenced by the Superior Number of the Royal Court AG-v-J [2015] JRC 262B to a total of six years' imprisonment in respect of three counts of indecent assault, one count of unlawful sexual intercourse, two counts of procuring acts of gross indecency and one count of attempting to do so. All of these offences were committed over an eight month period against the same child who was aged then between 13 and 14 years.
11. The Court was asked to consider the matter of deportation. The Crown's submissions were that the Applicant was a man who represented a high risk of harm to female pre-pubescent children under the age of 16, and there was a high risk of sexual recidivism. The Crown therefore concluded that the Applicant's continued presence in the Island was detrimental to Jersey. There was then an analysis of the human rights considerations of the Applicant, and his family; and the Crown's conclusion was that while the decision in relation to a recommendation for deportation was ultimately a matter for the Court, with hesitation, the Crown's conclusions were that the effects of a deportation recommendation on the Applicant's children, his parents and his siblings were such that a recommendation for deportation ought not to be made.
12. Applying the case of Camacho v AG [2007] JLR 462, the Court indicated it was unanimously of the view that the first limb of the test had been passed, namely that the continued presence of the offender in the Island was to the public detriment, but equally unanimously of the view that the second limb which required the Court to balance the interests of the community in deporting the offender against the interests of others not before the Court as well as the human rights of the offender had not been passed. Accordingly, the Court did not make a recommendation for deportation. Other than express the Court's unanimous views on both limbs of the test, the Royal Court unfortunately did not indicate its reasons for that conclusion, which must have complicated the process for the Respondent when he came to consider whether or not to make a deportation order.
13. The Applicant appealed against his sentence, which was reduced by the Court of Appeal (J-v-AG [2016] JCA 090) to a period of four and a half years imprisonment, and the Applicant's earliest calculated release date is 14th May 2018.
14. The Applicant became eligible for conditional early release on 16th August, 2017, and that being the case, three months before that date the Service began the process of reviewing whether a deportation order ought to be made. On 4th May, 2017, an officer from the Service met the Applicant to interview him as part of the preparation for a report which the Service would prepare and submit to the Respondent. A deportation questionnaire was completed, it is understood by using the answers given by the Applicant to the officer from the Service during the interview. The same day, the Service wrote to the Applicant to inform him that he had been interviewed that day, and that the Service would then complete a report about the background circumstances for the purpose of the Respondent deciding whether or not to make a deportation order. The purpose of the letter was to give the Applicant a final opportunity to make further representations as to why he should not be deported to Portugal on completion of his sentence.
15. On 10th May, the Applicant wrote to the Service to make representations as to why he should not be deported. In his letter he explained that he arrived in Jersey at the age of four and had lived in Jersey continuously ever since. He had been educated here and regarded the Island as his home. He had not lived in Madeira since then, and could not speak Portuguese fluently. The whole of his wider family lived in Jersey, and his only close relative in Madeira was a cousin who the Applicant alleges had abused him when he was young. He had always supported himself in Jersey, was father to two little girls whom he hoped to support in their upbringing. His prison sentence had come as a shock to him, and made him re-evaluate his whole life. He had worked extensively in prison with both the Probation and Psychological Services including his English and numeracy to improve his skills. He considered that if he were not allowed to remain in Jersey, that could have a potentially negative effect on his children as well as on himself.
16. With the letter of 10th May were a number of supporting letters from the Applicant's parents, his sisters, his uncle and some friends.
17. The letter was supplemented by a letter written by Messrs Viberts on his behalf on 6th June 2017. In this letter, representations were made as to why the Applicant should not be deported. It was pointed out that at no stage of the criminal proceedings was the Applicant considered as a candidate suitable for deportation. The Crown had not sought a deportation order and the Court had unanimously found that he should not be deported. It was said that it would be disproportionate, considering his rights and those of others under the European Convention on Human Rights that any deportation should take place. It was also pointed out that the Applicant was subject to a restraining order and the notification requirements under the Sex Offenders (Jersey) Law 2010 and that it was therefore possible to see these orders as mitigating the risks of further offending. Although the Applicant's letter had not indicated any remorse, the letter from his lawyers on his behalf contained the statement that the Applicant recognised the very serious error of his ways and was remorseful.
18. On 4th July 2017, the Service submitted a deportation report to the Respondent, providing a background of the Applicant, including his age, origin, family ties in Jersey and lack of them in Madeira, and that he had two young daughters in the Island. The Service noted the Applicant's claim that his first language was English and that he could not speak Portuguese nor could he read or write in Portuguese. The Service noted that this conflicted with the Probation report which had referred to the fact that the Applicant had been heard speaking Portuguese to fellow nationals whilst in prison. The Service noted that the Applicant had made false claims about being born in Jersey to officers - it is said that he made these claims to the Probation Court Officer, the prison officers at reception into HMP La Moye and the Probation Officer preparing the Jersey Probation and After Care Service report in June 2017, and that it was only later that he admitted having been born in Madeira.
19. The Service deportation report referred to the Prison Forensic Psychologist's comment that the Applicant took a callous and egocentric stance in respect of his sexual offending, admitting his guilt at an intellectual level but demonstrating no remorse or victim empathy. This was put in juxtaposition to the reference to letters received from Messrs Viberts and the Applicant's family and friends which showed the Applicant to be a helpful and caring person. The deportation report did not indicate that the Prison Forensic Psychologist's report was prepared for the Royal Court on sentence, and therefore contained views expressed in 2015.
20. The report also went on to indicate that the Applicant had not at that stage taken any steps to establish contact with his children through the Family Court, and that advice had been received from the Probation and After Care Service that establishing such contact would not be a swift process. It was said that the Children's Service would be unlikely to assess his return to the family home, where his younger sisters lived, as appropriate, because of his offending. The report went on to say that for the majority of the time since the Applicant left full time education, prior to his incarceration, he was unemployed and in receipt of Income Support for a cumulative total of five and a half years out of six, and it contained a sceptical note about the Applicant's intentions to work with his uncle on his release.
21. The Respondent asked the Service for further information as to the meaning of "genuine and subsisting relationship" in the relevant deportation rules, to which we will come later in this judgment. As a result an addendum to the deportation report was sent to the Respondent on 14th July, 2017 providing information on the approach taken by the Home Office in the United Kingdom to that expression. The view expressed by the senior case worker for deportations across the UK was that in circumstances comparable to those of the Applicant, it would not be considered in England that he had a genuine and subsisting relationship with his children, and that any future potential relationships were not relevant. It was also noted by the senior case worker that the Applicant's children could travel to see the Applicant or have contact with him via telephone and/or social media.
22. On 19th July, 2017 a second addendum report to the deportation report was provided by the Service, regarding the re-evaluation of the Applicant's risk profile by the multi-agency risk assessment management meeting. That re-evaluation had reduced the risk of the Applicant's re-offending from 15 (which is the lower end of the high rating) to 11 (which is at the top of the medium rating).
23. On 24th July, 2017, the Respondent took the decision that the Applicant should be deported.
24. The Applicant contends that a number of important reports and other documents which were considered by the Respondent were not available to the Applicant, and that therefore he has not had the opportunity of making full representations upon them. The documents about which the Applicant complains in this respect are the deportation report prepared by the Service, the two addendum reports, the Probation report of 8th June, 2017 and some Home Office guidance which was exhibited to Major Oldridge's affidavit. This latter document is a public document, but there is no cross-reference to it in any Jersey document dealing with deportation matters. The Applicant also contends that he did not receive the questionnaire completed by the Customs and Immigration official with him on 4th May, 2017.
25. Reliance is placed on the case of Surinder Singh Kanda v Government of the Federation of Malaya [1962] AC 322. This was a decision of the Privy Council on appeal from the Court of Appeal of the Supreme Court of the Federation of Malaya concerning the dismissal of the appellant, an inspector of police, on the ground that at an enquiry before an adjudicating officer he had been found guilty on a charge of failing to disclose evidence at a criminal trial. A question around a conflict between the constitution of Malaya and the Police Ordinance of 1952 is not relevant for present purposes but the Privy Council held that the failure to supply the appellant with a copy of the report of the Board of Enquiry, which contained material highly prejudicial to him and which had been sent to and read by the adjudicating officer before he sat to enquire into the charge, amounted to a failure to afford the appellant a reasonable opportunity of being heard, and therefore amounted to a denial of natural justice. At page 337, Lord Denning, giving the decision of the Board said this:-
26. The powers of the Lieutenant Governor (now the Minister for Home Affairs) to make orders for deportation arise out of the provisions of the Immigration Act 1971 as it applies in Jersey pursuant to the Immigration (Jersey) Order 1993. As has been mentioned, there is no provision in the Order in Council extending part of the Act to Jersey for appeals, nor have we been informed that there is the raft of subordinate legislation which applies in the United Kingdom in relation to the process which is to be followed. We assume that the Jersey Immigration Rules are silent in this respect or we would have been referred to them. Nonetheless, we accept the submission that the process must be fair and it is a fundamental principle of administrative law that a person is entitled to make representations in relation to a matter where the decision will fundamentally affect him. The applicability of the principle is recognised in the practice which has been adopted by the Service for many years, whether in the course of criminal proceedings or in civil cases such as this - the person who is liable to be deported is given notice that consideration is being given to that question, and is given the opportunity to make representations which he does at the time of sentencing by making submissions to the Court, or, after sentence when the decision taker is considering whether the circumstances are such that a deportation order ought to be made, the Service contacts the person in question and invites representations, as indeed happened here.
27. Although there appears to be no legislation directly on the matter, we also accept the submission that, in order that the person liable to be deported has the right which properly can be exercised, he must know sufficient about the subject matter which will come under consideration by the decision taker to be able to comment on those factors.
28. At the same time, the decision taker must be in a position to receive advice on all the matters which are put before him for consideration and it cannot be the law that he is required to return to the potential deportee every time that advice is received in order to invite further submissions, not least because those further submissions may prompt a requirement for further advice and then a yet further return to the potential deportee for comment. The process has to have an appropriate finality to it, and in reviewing the criticisms which are made in this case, we consider an appropriate balance has to be found ensuring that the decision taker could take advice and at the same time that the potential deportee had an opportunity to answer all the material facts put before the decision taker in the context of his making a decision.
29. It was submitted by Advocate Meiklejohn on behalf of the Respondent that established procedure was followed. The Service was acting as officers of the Lieutenant Governor, and the submission was made that a government authority is not obliged to show a person whose human rights are in issue the papers relevant to that decision unless he challenges the decision which was made. The difficulty with this argument is that a challenge to a decision for deportation can only be made by judicial review with leave of the Bailiff, and an applicant for such leave must have sufficient information about the decision which he wishes to challenge in order to demonstrate why he can properly contend before a court that the decision ought to be set aside. Depriving the applicant of access to information relevant to the decision-taking process will in effect reduce considerably his opportunities to challenge the decision which has been taken, not only where there are no other avenues for appeal, but also where the decision affects his fundamental human rights guaranteed by the European Convention on Human Rights and part of our domestic law. In our view, it is clearly necessary that immediately after an indication is given by the potential deportee that he wishes to challenge the deportation order which has been made, the decision taker must provide him forthwith with all the relevant material upon which the decision was based. Indeed, this happened in this case. Furthermore, we think that it is appropriate that where Home Office guidance is to be applied, it should be published. We accept that the guidance may well be publically available in the United Kingdom, but that does not make it guidance which would necessarily be applied in Jersey, and the decision taker here should therefore publish the standing guidelines upon which decisions will be taken, thus enabling potential deportees to be informed about the subjects which their representations should cover.
30. In criminal cases before the Court, where a recommendation for deportation is or is not to be made, the Service provides a copy of the report to the Attorney General and, either through the Attorney General or directly, to the defendant. We do not think there is any reason why the report which the Service provides to the decision taker in relation to a final decision should be any less accessible to the potential deportee to enable representations to be made upon it. In this case, we think that Advocate Morley-Kirk was right to suggest that, although the Service demonstrated its customary objectivity, the tone of the report was hostile to the Applicant and there were some comments within it which the Applicant might have wanted to address; and we do not think it is enough to say, as Advocate Meiklejohn did, that the Applicant's representations would have made no difference to the ultimate decision anyway. An appropriate process requires that both those who suffer and those who gain from it at the end of the day appreciate that the decision has been arrived at fairly.
31. Advocate Morley-Kirk was at pains to emphasise that there was absolutely no allegation of bad faith or deliberate impropriety, but rather that the process of deportation must be transparent, enabling the potential deportee to know what factors were being considered in order that he might address them. This had not happened in the instant case, and therefore there has been procedural impropriety for the purposes of judicial review, and that of itself was sufficient to strike down the decision.
32. We have accepted the submission that the process was unfair for the reasons which we have given. We do not go on to address the question which Advocate Meiklejohn put to us as to whether the decision would have been any different without that procedural unfairness, although we think that Kanda [supra] probably suggests that it is unnecessary to do so. However, given our view of the human rights implications of this case, the order for deportation will be set aside as unlawful in any event, and so the issue does not arise.
33. We start with the decision which the Respondent took. The deportation order was dated 24th July, 2017, and states merely that pursuant to Section 5(1) of the Immigration Act 1971 as extended to the Bailiwick by the Immigration (Jersey) Order 1993, the Respondent required the Applicant to leave and prohibited him from entering the Bailiwick of Jersey so long as the Order is in force on the ground that the Respondent deemed it to be conducive to the public good to make that order. No reasoning was contained within that document to support the decision which was taken. However, the affidavit of Major Oldridge, made on behalf of the Respondent, put the reasoning in this way:-
"50. The Lieutenant Governor took into account the information received from the Service, and the supporting information from Children's Services, Maran, the Home Office and Probation. He also weighed this against the submissions put forward by the Applicant and on his behalf, and the personal circumstances of the Applicant. It was noted that the Applicant had stated in his interview with the Probation officer that he would commit suicide if he was deported, however it was also noteworthy that the Probation officer said that this comment could be considered to be manipulative (page 6 of the Probation report).
51. The Lieutenant Governor had no hesitation in agreeing with the Royal Court and the Service that the Applicant's continued presence in the Island was detrimental to the public good.
52. In then considering whether deportation was proportionate to the Applicant's Article 8 ECHR rights, the Lieutenant Governor was guided by the Rules which provide that for R399(A)(i) to apply there must be a genuine and subsisting relationship with a child. The Lieutenant Governor was advised that the Applicant did not have a genuine and subsisting relationship with his two children as he had no access rights and had not taken any steps to change this. The approach of the Home Office was that potential future relationships would not be enough to be considered as a genuine and subsisting relationship. Indeed, the Lieutenant Governor was advised that guidance by the Home Office (JO1/5) provides that the following shall be taken into account when determining if there is a genuine and subsisting relationship:-
Does the child live with the person?
Where does the applicant live in relation to the child?
How regularly do they see one another?
Are there any relevant court orders governing access to the child?
Is there any evidence provided within the application as to the views of the child, other family members or social workers or other relevant professionals?
To what extent is the applicant making an active contribution to the child's life?
53. The following are also said by that guidance to prompt closer scrutiny:-
The person has little or no contact with the child or contact is irregular;
Any contact is only recent in nature;
Support is only financial in nature;
There is no contact or emotional support; and/or
The child is largely independent of the person
54. Based on the above guidance, it was concluded that the Applicant did not have a genuine and subsisting relationship with his children and any potential future relationships are irrelevant. Therefore, Rule 399(A) is not engaged and there are no exceptional circumstances outweighing the public interests in deportation. In any event, even if the Applicant was found to have a genuine and subsisting relationship with his children, the Lieutenant Governor was satisfied that ordering his deportation struck the right balance between the individual's Article 8 ECHR rights and the wider public interest in deporting those who have been convicted of serious offences and pose a continuing risk to society. This was notwithstanding the family ties he has in Jersey. He has no dependents. While he maintains a relationship with his parents, siblings and wider family, he is not dependent on any of them given that he is 26 years old and as mentioned above, there are serious doubts he will be able to return to the family home given the concerns of Children's Services. Taking all this into account, it was concluded that deportation would not be disproportionate to his Article 8 rights.
55. As regards R399A(a), it is not entirely clear that the Applicant lived in Jersey for 20 years prior to his incarceration in May 2015. He stated to the Service that he came to Jersey sometime in 1995 at four years old, which would have been after 20th April 1995. It is therefore possible, although not entirely clear, that he has spent just less than the 20 years referred to in paragraph 399A(a) of the Rules. Notwithstanding this recalculation it is accepted that the Applicant has spent the majority of his life in Jersey. In any event, whilst he has not lived in Madeira since he was four, it is not the case that he has no ties with Portugal/Madeira and even if 399A(a) was met, the Lieutenant Governor would have nonetheless considered it proportionate to deport the Applicant for the same reasons given above. "
34. The Jersey Immigration Rules (Version 10.3.17) ("the Rules") which were in force at the time of the decision where material provide as follows:-
(i) Rule 363 of the Rules provides that the circumstance in which a person is liable to deportation include where the Lieutenant Governor deems the person's deportation to be conducive to the public good.
(ii) Rule 398 provides that where a person claims that his deportation would be contrary to Article 8 of the ECHR and, inter alia: his deportation is conducive to the public good because:
(a) he has been convicted of an offence and sentenced to a period of at least four years; or
(b) he has been convicted of an offence for which he has been sentenced for a period of imprisonment of less than four years but at least twelve months; or
(c) the deportation of the person from Jersey is conducive to the public good because, in the view of the Lieutenant Governor, his offending has caused serious harm or he is a persistent offender who shows a particular disregard for the law, the Lieutenant Governor in assessing that claim will consider whether paragraph 399 or 399A applies and, if they do not, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors.
(iii) Rule 399 applies if the person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in Jersey, is a British citizen or has lived in Jersey continuously for at least the last seven years and in either case it would not be reasonable to expect the child to leave Jersey and there is no other family member able to care for the child in Jersey.
(iv) Rule 399A applies if
(a) the person has lived continuously in Jersey for at least 20 years immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave Jersey; or
(b) the person is aged under 25 years, he has spent at least half of his life living continuously in Jersey immediately preceding the date of the immigration decision (discounting any period of imprisonment) and he has no ties (including social, cultural or family) with the country to which he would have to go if required to leave Jersey."
35. It will be seen that Rule 398 gives detail to the way in which the Lieutenant Governor is to approach consideration of whether deportation is conducive to the public good. That conclusion is assumed where there is a period of imprisonment of at least four years, or where the offending has caused serious harm or the potential deportee is a persistent offender. That construction arises as a result of the use of the word "because" in sub-paragraphs (a) and (c). However, that particular part of the analysis requires little further consideration - the Royal Court was of the view that the Applicant's conduct passed the first part of the Camacho test, and that his continued presence in the Island was not conducive to the public good, and we are unsurprised that the Respondent so concluded. That part of his decision has not been attacked, and seems to us to have been clearly right.
36. As Rule 398 contemplates, the decision that it would be conducive to the public good to deport the particular offender raises the question of the Article 8 rights both of the offender and of those sufficiently close to him, and Rule 398 sets out that unless paragraphs 399 or 399A apply, it will only be in exceptional circumstances that the human rights objections will outweigh the fact that his deportation would be conducive to the public good.
37. It appears to us that the reasonableness of the decision in terms of human rights needs to be considered separately in relation to the following Article 8 rights:-
(i) The rights of the Applicant.
(ii) The rights of the Applicant's children.
(iii) The rights of his parents, siblings and other family.
38. We take those in reverse order. First of all, the letters sent with the Applicant's letter of 10th May, 2017 making representations as requested show that there were Article 8 claims of the Applicant's wider family which needed to be considered. His parents said that they:
"Could not bear to see him leave. We as a family we support our own. We have always supported our son and we will continue supporting him when he gets out of prison no matter how old he is. We have been through so much. "...Passage redacted...". He means everything to us and our family. Please, please give our son a second chance to prove to us and to everyone that he is a changed his ways (sic). Everyone deserves a second chance."
39. The Service received a letter from the Applicant's younger sister, which included the following language:-
"My brother has been there for me for my whole life and it would kill if I saw my brother getting deported. My brother doesn't have any family in Madeira so he shouldn't be deported. When my brother first went to prison I refused to go to school because I was so heartbroken to be separated from my brother. Me and him are inseparable and it would affect me a lot if he got deported not just on my attendance but me mentally."
40. A similar letter was sent by his other younger sister and, given the immediate family probably of less value, by his uncle.
41. Each of the persons writing these letters has a right to respect for their private and family life under Article 8. All those rights were engaged, and should have been considered. It is not clear from the reasoning set out in support of the decision that they were considered. We would not have been surprised if, having considered them, the decision taker reached the view that it was nonetheless proportionate to make the order for deportation, having regard to those particular rights. In our view, that would have been within the reasonable margin of appreciation allowable to a decision taker in these circumstances. However, we cannot know if that would in fact have been the decision taken because there is no reasoning around this particular issue. To the extent that the family ties are mentioned in that reasoning, it appears at paragraph 54 of Major Oldridge's affidavit, quoted above, to be a factor taken into account only in so far as the Applicant's Article 8 rights are concerned, and not as separate Article 8 rights of the family.
42. The Applicant's two children have remained in Jersey with their mother, the Applicant's ex-partner, since the relationship between the Applicant and the ex-partner ended. The Probation report which was available to the Respondent indicated that the Applicant had an unusual relationship with both mother and children in that he did not live with his partner full time, and instead would spend about four days a week living with his parents at their home. His two children would stay over with him there on occasion. As a result of the index offences, the relationship with the ex-partner ended and he currently has no contact with his children. The deportation report indicates that he wishes to seek contact legally, at the earliest opportunity after his release from prison and indeed he obtained a legal aid certificate for that purpose in February 2017.
43. It is clear from the Respondent's decision as summarised by Major Oldridge that the Respondent considered that the Applicant did not have a genuine and subsisting relationship with his two children as he had no access rights and had not taken any steps to obtain these. The phrase "genuine and subsisting parental relationship" appears in paragraph 399 of the Immigration Rules.
44. This language is very similar if not identical to the language adopted in the Immigration Rules applicable in the United Kingdom, which were the subject of consideration in Secretary of State for the Home Department v VC [2017] EWCA Civ 1967. In that case, VC had a number of convictions for sexual assault and there had been a finding in the Family Court that he had a consistent and well-established alcohol problem prior to his sentence of imprisonment and that he had played little part in caring for the children whether before his sentence or thereafter. The couple separated in 2009, and although the children's mother suffered from mental ill health which significantly compromised her ability to provide them with safe enough care, VC declined to respond to requests from the Social Services for him to take up that responsibility. As a result, care proceedings were ultimately commenced, and the children removed permanently to foster care pending adoption.
45. Giving the judgment of the Court of Appeal McFarlane LJ said this:-
46. It appears to us that this judgment is helpful in at least two respects. First of all, it confirms that the Home Office guidance is only guidance and does not provide any prescriptive rules. The task of the decision taker is to consider whether the immigration rules themselves apply. Secondly, the case is helpful in explaining that each of the elements of 'genuine and subsisting parental relationship' must apply if the rule is to apply.
47. We understand the Applicant's position to be that he has taken his application for contact with the children no further because he felt that he would be unable to progress it until he had been released from custody, and had a permanent base from which the application could be made. We do not think that is much of an explanation. We can well understand how his ex-partner, given the Applicant's extreme breach of the trust reposed in him by this ex-partner in relation to her 13 year old child from a previous relationship, would be very reluctant to allow him any contact with their two children, but that reluctance is not determinative of the issue and ultimately it would be for a family court to make that determination. One can understand that, given the time spent in custody and the relative lack of familiarity between the Applicant and his children, and given their mother's opposition, the process of obtaining an order for contact and actually having contact might take some time. In those circumstances, the sooner the application was made the better and the delay does not work to the Applicant's advantage. If there might be doubt as to whether the delay does in fact establish a lack of real interest on his part, there can be little doubt that the delay confirms that there is not currently a genuine and subsisting parental relationship between him and his children. In those circumstances, it appears to us that the decision of the Respondent when assessing the Applicant's Article 8 rights in connection with his children falls within the range of reasonable responses which a decision taker might reach. Furthermore, the expression 'parental relationship' in this context includes the Article 8 rights of the children, because that relationship must exist on their part as well if it is to hold water in the application of Rule 399.
48. We now turn to the position of the Applicant directly, regardless of his potential to have contact with his children.
49. Advocate Meiklejohn advances the submission that because the Applicant has been sentenced to a period of imprisonment of more than four years, he falls within Rule 398(a), and accordingly Rule 399(A) does not apply. It follows that, pursuant to the Rules, it will only be in exceptional circumstances that the public interest in deportation will be outweighed by other factors, and as a result of this, the decision of the Respondent fell within the range of reasonable responses to the question which faced him for consideration and should not therefore be disturbed.
50. The Immigration Rules are subordinate legislation and are therefore liable to be struck down by the Court if they are incompatible with the European Convention on Human Rights (ECHR). However we do not have to go so far because as drafted they are not incompatible with the Convention. They should, however, be read in the light of the Convention, and it seems to us to be clear that if the Convention Rights under Article 8 of the Applicant would be unlawfully infringed, it must follow that the circumstances were such that pursuant to Rule 398, the deportation order should not have been made. This is so, whether it is treated as an 'exceptional circumstance' or not. Pursuant to the Human Rights Law, both the Respondent and the Court are obliged to give effect to the Applicant's Convention Rights.
51. Article 8 is well known, and is in these terms:-
As correctly submitted by Advocate Meiklejohn, the Article 8 right is a qualified right, and the extent of that qualification appears in paragraph 2 of the Article.
52. To order the deportation of the Applicant from Jersey clearly interferes with the right he has to respect for his private and family life under paragraph 1. The Respondent is therefore required to establish that the interference falls within the exceptions in paragraph 2. Clearly the interference is in accordance with the law in the sense that provision for the interference with that right appears under the deportation provisions of the Immigration (Jersey) Order 1993. Equally clearly, no interests of national security or economic wellbeing arise, nor do issues relating to the protection of health or morals. The question really is whether the interference is 'necessary in a democratic society in the interests of.... public safety...for the prevention of disorder or crime.. or for the protection of the rights and freedoms of others." [Emphasis added]
53. The words 'necessary' brings with it a requirement for an assessment of proportionality. The deportation report of the Jersey Probation and After Care Service refers at paragraphs 8 et seq to the risk of reoffending and risk of harm. At paragraph 8, the report looks back to the social enquiry report and the psychological report prepared in 2015 for the purposes of sentencing. It notes the risk factors which then applied. At paragraph 11, which summarises the historical position, the report notes that assessment that had been made that there was evidence to suggest the applicant posed a notable risk of sexual reconviction and his profile was in the high risk band. Somewhat confusingly, the last sentence of paragraph 11 seems to look forward to the present date where it is said that 'the risks remain high and are of a sexual nature'.
54. There is then a passage in the Service's deportation report which deals with current circumstances. This does not address the question of current risk at all but it does indicate that the Applicant wished to complete a Jersey prison based thinking skills programme, and was willing to continue to engage with the Probation Service in a voluntary capacity after his release from prison. It was noted he would also be under the direction of the States of Jersey Police Offender Management Unit. The report noted that he would be subject to the notification requirements and a restraining order.
55. However, a further re-offending assessment was conducted on 29th June, 2017, some three weeks after this report had been completed. That assessment was conducted by the prison psychologist in preparation for the multi-agency risk assessment management meeting. The results of the assessment reduced the risk even though the risk remained 'notable' according to the Probation and After Care Service. It brought the assessment score down to a point below the high band and into the moderate band, his reassessment score being reduced from 15 to 11. The Service considered that the reduction from the earlier figure resulted in the Applicant being more emotionally stable than he was at the time of the original assessment, and also that he was considered to be more rational. The Service then went on to indicate that as against that improvement, children's officers apparently considered that he represented a considerable threat, because anecdotal assessments were made by them following a recent meeting that they had with the Applicant.
56. Considering that one is dealing with the fundamental human rights of the Applicant, it seems to us that this is unsatisfactory. The Applicant is entitled to see the evidence upon which an important decision such as this is to be taken, and some anecdotal assessments made by children's officers simply do not meet that threshold. One needs to know why they apparently think as they do and what that is based upon, because without that information there can be no assessment of its merits. We therefore disregard completely the reference in the second addendum of the Customs and Immigration Service to the anecdotal assessments of the children's officers. The right way of approaching the issue of further offending is to see that he no longer presents a high risk of re-offending but now is at the top of the band of moderate risk of re-offending.
57. It follows that in the assessment of the proportionality of a deportation order made for the prevention of crime or for the protection of the rights and freedoms of others, and especially potential victims, one is faced with a person who is at moderate risk of reconviction, but who nonetheless is also facing all the controls that follow from being subject to the notification requirements and restraining orders, and being a voluntary client who will continue to engage with the Probation Service and is subject to the direction of the States of Jersey Police Offender Management Unit.
58. Having regard to those risks, what is the proportionality of the order? It seems to us that this requires the public good in deportation to be measured against the effect on this particular offender of the interference with his Convention Rights. On that, we should be under no illusions. A man who for all practical purposes has known no other place of residence than Jersey will as a consequence of the deportation order, if it is maintained, be relocated to a country where he is not fluent in the native language, where he neither reads nor writes that language, where he has no family other than a cousin who is alleged to have abused him and against whom he has recently made a complaint, where he has no known friendships or established relationships, no direct cultural knowledge and none of that fabric of understanding of how the jurisdiction operates which is second nature to most nationals of the jurisdiction in question. In a very real sense, despite his nationality, he would be left as a stranger in a foreign country. With that on one side of the scales, in our judgment it simply cannot be said on the other that the Lieutenant Governor was better placed to take the view that deportation would in this case make immigration control more effective.
59. The rationale behind Rule 399A of the Immigration Rules must be that where an offender has been convicted of a less serious offence than merits four years' imprisonment or more, a continuous long period of residence in Jersey tips the balance on human rights considerations. There are two points to consider in this respect:-
(i) These Rules reflect, as we understand it, the UK Immigration Rules. However, sentencing policy in Jersey is different from that in the UK and we think it would be appropriate to review those Rules accordingly, whether the outcome changes or not.
(ii) The Rules give the views of the Service and/or the Respondent on how human rights are to be balanced but they cannot supplant the jurisdiction of the Court to consider human rights issues itself. This is part of the structured proportionality approach referred to earlier in the judgment. Rules of this kind are not be treated as hard-edged policy never to be departed from. That is particularly so in a small jurisdiction like our own where there are substantial long term communities the members of which are not British nationals but nonetheless count themselves as Jersey citizens, for they know nowhere else.
60. In our judgment there is no doubt at all that the interference with the Applicant's Article 8 rights by making the deportation order is disproportionate when one considers the impact upon him of that order in this way. That is not to underplay the seriousness of the offences which he has committed - but the other side of that coin is that we recognise that British nationals also commit these offences and they are not liable to deportation. Although this applicant is a Portuguese national by birth, his personal history is such that his roots and being are in Jersey where he lived for 19 years prior to his arrest. He could without any question have applied successfully for British nationality before committing these offences, which supports the view that his offending is Jersey's problem and not the problem of his country of nationality. When this matter was considered at the time of sentence in 2015, the Superior Number of this Court, which had all the facts around the offending including a victim personal statement, and despite being unanimously of the view that the first limb of the Camacho v AG test was passed, was equally unanimously of the view that the second limb was not. It is of interest that the prosecuting authorities took the same view. The judge and Jurats sitting on this application for judicial review are different from the judge and Jurats sitting in the sentencing court. We are left with two judges and seven Jurats all of the view that it is disproportionate to interfere with the Applicant's human rights by making the deportation order in the present circumstances. This is one of those rare cases where the decision reached by the Respondent was outside the range of permissible responses open to him, and the balance struck in making the deportation order was wrong.
61. For these reasons the order of the Respondent deporting the Applicant at the conclusion of this sentence is hereby set aside and declared of no effect.
