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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> De Gouveia -v- Lieutenant Governor [2012] JRC 060 (21 March 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_060.html Cite as: [2012] JRC 060, [2012] JRC 60 |
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Judicial Review - application for leave to apply for Judicial Review.
[2012]JRC060
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Before : |
M. C. St. J. Birt, Esq., Bailiff, sitting alone. |
Manuel Jorge Viveiros De Gouveia
-v-
HM Lieutenant Governor
Minister for Home Affairs
In the matter of an application for leave to bring proceedings for judicial review.
Advocate R. Tremoceiro for the Applicant.
H. Sharp Q.C., Solicitor General for the Lieutenant Governor and the Minister for Home Affairs
JUDGMENT
THE BAILIFF:
1. This is an application for leave to apply for judicial review in respect of two decisions; first a decision dated 19th December, 2011, of the Lieutenant Governor ordering that the applicant be deported at the conclusion of the sentence of imprisonment which he is currently serving; and secondly a decision of the Minister for Home Affairs dated 5th March, 2009, terminating the Temporary Release Scheme for prisoners who are the subject of a deportation order.
2. The application was heard ex parte but on notice to the Lieutenant Governor and the Minister. I heard oral submissions from Advocate Tremoceiro and from the Solicitor General on behalf of both the proposed respondents.
3. The appellant was born in Madeira and is now 31. He came to Jersey in 1997 when he was just under 17. He joined two of his brothers who were already living here. In 1999 he formed a relationship with a woman ("his former partner") who lived in Jersey, although she originated from the mainland of Portugal. They had a daughter in June 2000 who is now 11.
4. On 19th August, 2008, the applicant appeared for sentencing, together with others, before the Royal Court. He pleaded guilty to one count of grave and criminal assault and three in relation to controlled drugs, namely being concerned in the importation of heroin and two counts of the supply of heroin. The assault charge arose out of an incident in September 2007 when the applicant head-butted a man in a night club causing a cut on his nose. The most serious charge was the importation. The applicant was involved in organising the importation of 227 grams of heroin with a street value of £227,000. He was also involved in the supply of wholesale amounts of heroin to lesser street-level dealers. He was described by the Royal Court AG-v-De Gouveia and Others [2008] JRC 139 as having played a The applicant was found to be in possession of some £11,360 in cash and he was made the subject of a confiscation order of £13,370.
5. The applicant was sentenced to a total of 7 years' imprisonment and the Royal Court recommended his deportation. In doing so the Royal Court said this at [2008] JRC 139 para 17:-
6. The applicant appealed against that recommendation to the Court of Appeal but on 16th May, 2009, the appeal was dismissed (De Gouveia-v-AG [2009] JCA 098), with the Court of Appeal saying that it could see nothing to criticise in the approach of the Royal Court.
7. During the course of 2011, the Customs and Immigration Service ("the Service") began gathering information for submission to the Lieutenant Governor, with whom the power to make a deportation order rests pursuant to the Immigration Act 1971 as it applies in Jersey pursuant to the Immigration (Jersey) Order 1993.
8. An interview with the applicant was held on 30th September, 2011, at which the applicant explained why he felt it would not be appropriate to make a deportation order against him. On 6th October, the Service wrote offering an opportunity to make further representations prior to the papers being placed before the Lieutenant Governor. The applicant took advantage of this invitation and wrote a letter dated 16th October. A number of references, including from two prison officers, were obtained together with a report from the Probation Service which showed that he was at low risk of re-offending.
9. The Service submitted a report ("the Report") to the Lieutenant Governor on 1st December, 2011. The Report set out in considerable detail the arguments for and against deportation. It also reminded the Lieutenant Governor that the Court of Appeal (in Camacho-v-AG [2007] JLR 462) had made it clear that the Lieutenant Governor is entitled, if he thinks fit, having taken the court's recommendation for deportation into account, to depart from it because circumstances may have changed since it was made, but also because he differently evaluates the various competing factors. In other words the Lieutenant Governor is not bound by the recommendation of the Royal Court that an offender should be deported.
10. Following consideration of the Report, the Lieutenant Governor issued a deportation order on 19th December, 2011, which was served on the applicant on 16th January, 2012.
11. Advocate Tremoceiro submits that deportation would have a disproportionate effect on the private and family life of the applicant and his daughter. He relies on the following matters:-
(i) Although the relationship between the applicant and his former partner has ended, there remains a good relationship between them and she has regularly brought the daughter to visit the applicant in prison. He has a close relationship with his daughter. The applicant has seen more of her since being allowed monthly home leave under the Temporary Release Scheme. The daughter lives with her mother and there is no suggestion that they could or would relocate to live in Madeira or mainland Portugal. Thus, if he is deported, it will be very difficult for the applicant to maintain a relationship with his daughter. This will have a significant adverse impact on her at the vulnerable age of 11.
(ii) The applicant has taken full advantage of all the opportunities available to him whilst in prison and has shown himself to be a model prisoner. He has undertaken a number of courses in basic construction skills and certificates to that effect were contained in the information supplied to the Lieutenant Governor. He has also undertaken a drug and alcohol awareness course whilst in prison and was regularly tested for drugs; all tests were negative.
(iii) Unusually, there were references from two members of the prison staff. One prison officer said that he had received fantastic feedback from the staff regarding the applicant's work and work ethic and pointing out that the applicant had worked extremely hard to achieve his goals. The other referred to his work in the horticultural department of the prison and said that he had been an exceptional and valuable member of the compound workforce, working above and beyond his remit. He had a superb work ethic and was a great example for others to follow.
(iv) Prior to the deportation order being made, the applicant had been approved for the Temporary Release Scheme. He had been granted periodic home leave and had also undertaken work experience. There was a reference from the firm for whom he had worked speaking well of him and offering full-time employment upon his release. He also had accommodation available upon his release. The money from his earnings had been used for the benefit of his daughter and had materially helped her position.
(v) In a report dated 10th November, 2011, his probation officer assessed him as being at low risk of re-offending on his release. He has no convictions other than those for which he was sentenced for 7 years' imprisonment.
(vi) Links with Madeira had decreased since the date of sentencing. His father had died since then and it was anticipated that in the near future his mother would move from Madeira to live with the applicant's brother in Jersey. That would leave only two brothers in Madeira but they apparently wished nothing more to do with the applicant because of his offending and the effect which that has had on his mother.
(vii) Given that the applicant has lived away from Madeira all his adult life and has no job prospects or support network in Madeira, he will face real difficulties in assimilating himself back into Portuguese society. He had spent his entire adult life in Jersey.
12. Advocate Tremoceiro accepts that, with one exception to which I shall refer in a moment, all of these matters were put very fairly before the Lieutenant Governor in the Report. The sole exception relates to the assertion in the Report that there was "no indication that Gouveia would have undue difficulty in assimilating himself back into Portuguese society". Advocate Tremoceiro argues that that was not the case for the reasons mentioned above. I do not agree that this aspect was not put fairly before the Lieutenant Governor. It was quite clear from all the information before the Lieutenant Governor that the applicant would indeed have some difficulty in assimilating himself back into society in Madeira because it was made clear that, particularly with the death of his father and the move of the mother to Jersey, his family would essentially be in Jersey. It was also made clear that he had not lived in Madeira since the age of 16. He had been in Jersey for some 14 years. However, his first language remains Portuguese (he requested the services of an interpreter for the hearing before me) and he is aged 31. The applicant has not pointed to any particular factor which would give rise to "undue" difficulty other than those referred to which were fairly and squarely before the Lieutenant Governor. Accordingly I find that all of the matters upon which the applicant relies were put fairly before the Lieutenant Governor.
13. The Report conceded that the case for deporting the applicant was very finely-balanced. It listed the factors in favour of deportation and those against before eventually recommending that, by a small margin, the public interest in deporting the applicant outweighed the circumstances in favour of allowing him to remain. In making this recommendation the Report accepted that deportation would undoubtedly have far reaching consequences for his family life, as it would render even short visits to the Island impossible as long as the order was in place, although there were no known barriers to family members visiting the applicant in Portugal. The Report referred to the serious nature of the crime committed by the applicant and the fact that his actions, in importing a commercial quantity of heroin would, if successful, have had a significant detrimental effect upon the community.
14. It may be helpful to summarise the role of the Lieutenant Governor when deciding whether to deport a person following the commission of a criminal offence. Deportation will almost invariably bring into play Article 8 of the European Convention on Human Rights ("the Convention") which provides:-
15. I was referred to the decision of the English Court of Appeal in the case of Samaroo-v-Secretary of State for the Home Department [2001] EWCA Civ 1139, which involved consideration of the equivalent provisions under the Immigration Act as it applies in England and Wales, where the power of deportation rests with the Secretary of State. The court, in a judgment delivered by Dyson LJ discussed what was the relevant question for the Secretary of State. At paragraph 13 Dyson LJ said this:-
16. Having considered the competing submissions of the parties, Dyson LJ went on to hold as follows at paragraph 25:-
17. In my judgment, these observations apply equally to the task of the Lieutenant Governor when he considers the making of a deportation order under the Immigration Act as it applies in Jersey. His task therefore is to strike a fair balance between the need to prevent crime and disorder and protect the rights and freedoms of others on the one hand and the Convention rights of the offender of the other.
18. Having ascertained the role of the Lieutenant Governor when he considers whether to make a deportation order, one must go on to consider the role of the Court on an application for judicial review of such a decision. Advocate Tremoceiro rightly emphasised that cases such as this involve rights under the Convention and therefore the traditional approach of Wednesbury unreasonableness (or irrationality) is insufficient. He referred to the observations of Lord Steyn in R (Daly)-v-Secretary of State for the Home Department [2001] 2 AC 532 at para 27 where, he emphasised that a more intensive approach was required by the courts where rights under the Convention were at stake and the proportionality approach was required:-
19. Dyson LJ considered these observations of Lord Steyn in Samaroo and articulated very helpfully the role of the court in the context of judicial review of deportation decisions. At para 29, he quoted with approval two paragraphs of the judgment of the first instance judge in Samaroo:-
20. Later on, Dyson LJ went on to express the role of the court in his own words as follows:-
21. The Solicitor General also referred me to the case of Edore-v-Secretary of State for the Home Department [2003] 1 WLR 2979. That was not a case concerning deportation following the commission of a criminal offence; it was concerned with the deportation of an illegal immigrant. Furthermore the statute there confers a right of appeal against a decision of the Secretary of State to order deportation and the question was what should be the approach of the adjudicator on hearing such an appeal. Nevertheless, helpful guidance can be obtained which is equally applicable to cases of judicial review. The decision of the Court of Appeal was delivered by Simon Brown LJ and he began by approving an observation of Moses J in R (Ala)-v-Secretary of State for the Home Department [2003] EWHC 521 (Admin) at para 44:-
22. Simon Brown LJ went on to express the appropriate test in his own words at para 20:-
23. I respectfully adopt the approach articulated in Samaroo and Edore as equally applicable in Jersey. It follows that, in a human rights case, the Court will subject the decision of the Lieutenant Governor to intense and anxious scrutiny on an objective basis to see whether the Lieutenant Governor has, within the discretionary area of judgment accorded to him, struck a fair balance between the relevant interests, namely the offender's right to respect for his private and family life, on the one hand, and the prevention of crime and disorder and (in the case of drug trafficking offences) the protection of the health, rights and freedoms of others, on the other. The burden is on the Lieutenant Governor to persuade the Court that he could reasonably have concluded that the interference with the offender's Convention rights was necessary for the achievement of one of the legitimate aims set out in Article 8(2) and was proportionate. The Court will review the weight attached to the various factors but, in reaching its decision, the Court must recognise and allow to the Lieutenant Governor a discretionary area of judgment.
24. Advocate Tremoceiro's primary submission was that the decision of the Lieutenant Governor was disproportionate. An order would amount to a drastic interference with the family life of the applicant and his daughter. The various arguments referred to at paragraph 11 above amounted to a strong case against the need for deportation and the decision of the Lieutenant Governor could not have given adequate weight to those arguments. The Court was entitled to look at the weight given to various points in deciding whether the Lieutenant Governor had struck a fair balance between the competing interests.
25. He placed some reliance on the case of Maslov-v-Austria in the European Court of Human Rights (application number 1638/03) decided in June 2008. He particularly emphasised the need to have regard to the length of an applicant's stay in the country from which he was to be expelled. However, that case was very different. It involved a person who had committed a number of burglaries whilst still aged 14 and 15 in circumstances where he had lawfully entered Austria at the age of 6 with his parents and two siblings and had been educated and brought up in Austria since then. He could not speak Bulgarian (from whence he had originally come) and had no relatives or other social contacts in Bulgaria. He was still a minor at the time of the decision to deport him. The European Court emphasised that, for a settled migrant who had lawfully spent all or the major part of his or her childhood and youth in the host country, very serious reasons were required to justify expulsion. That was all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile. In the circumstances, I do not consider that the decision assists in the correct disposal of the present case.
26. Conversely, the Solicitor General emphasised that both the English courts and the European Court of Human Rights had accepted that a decision-maker in respect of deportation can properly give considerable weight to the need to deter drug trafficking. Thus at paragraph 37 of Samaroo, the Court of Appeal said this:-
As can be seen, the interference with Mr Caglar's Article 8 rights were more severe than in the present case.
27. The point was repeated in the UK context at paragraph 40 of the judgment in Samaroo as follows:-
28. It is of some relevance to note the facts of Samaroo. He was born in Guyana in 1948 and was therefore 50 at the time of the deportation order made by the Secretary of State. He had left Guyana in 1983 and arrived in the UK in 1988. He had therefore been in the UK some 10 years at the time of the deportation order. In 1988, he had married a woman also born in Guyana but who had acquired British citizenship. She had three children from a previous relationship and she and Samaroo had a son who was 10 at the time of the hearing. Samaroo had committed an offence of being concerned in the importation of cocaine worth £450,000 for which he was sentenced in 1994 to 13 years imprisonment. A number of compassionate circumstances were identified by the Secretary of State:-
(i) Samaroo's marriage and the length of it and his relationship with his wife;
(ii) the considerable length of his wife's residence in the UK;
(iii) the existence of the son (including the fact that he was a British citizen), and his relationship with his father;
(iv) the fact of the close family unit in the UK including the step-children;
(v) the length of time since he had last lived in Guyana;
(vi) the likely impact on the family should they ultimately choose to accompany him to Guyana, bearing in mind that all the wife's close family were in the United Kingdom and that she was employed there and had responsibilities there;
(vii) the evidence as to the effect on the son of the present situation and the impact of any future separation;
(viii) the assertions as to Mr Samaroo's future prospects in Guyana;
(ix) the fact that the family would be separated from Mr Samaroo should the family choose to stay in the United Kingdom;
(x) the fact that this was Mr Samaroo's first conviction;
(xi) the description of the efforts and progress made by Mr Samaroo whilst in prison where he had variously been described as a model prisoner with an exemplary prison record;
(xii) the fact that he was assessed as being unlikely to reoffend; and
(xiii) the fact that, although there was nothing to suggest he would be unable to find work in Guyana, he no longer had any meaningful ties with that country.
Despite these factors, as appears from the passage cited in the preceding paragraph, the Court upheld the Secretary of State's decision to order deportation.
29. This is a case where the applicant played a pivotal role in the importation of a substantial quantity of heroin, a Class A drug. Notwithstanding its awareness of the relationship of the applicant with his daughter, the Royal Court considered it proportionate to recommend deportation at the time of passing sentence. That decision was upheld by the Court of Appeal.
30. The Lieutenant Governor, as appears from his affidavit, considered all the factors which I have referred to earlier at para 11, including the applicant's family ties, his relationship with his daughter, his positive work in prison and all the facts that might be said to be a change of circumstance since the Royal Court recommended deportation in 2008, and then balanced these against the seriousness of the offending and the need to prevent crime and disorder. In my judgment it is not arguable that he reached a decision which went beyond the margin of discretion afforded to him and I therefore refuse leave to apply for judicial review. The Lieutenant Governor is entitled to place considerable weight upon the need to deter the commission of crime in the Island by deporting foreign nationals who have committed serious offences.
31. I should add that, in his submissions, Advocate Tremoceiro also relied on irrationality (Wednesbury unreasonableness). However, this is a higher test for interference by a court than that of proportionality and, given that I have rejected his submission that the Lieutenant Governor failed to take into account a material consideration, (namely the difficulties which the applicant might face in resettling in Madeira), the arguments on irrationality do not advance the applicant's cause beyond his case on proportionality.
32. As already mentioned, following the making of the deportation order by the Lieutenant Governor, the applicant was removed from the Temporary Release Scheme, under which he had been released for day work and occasional weekend home leave. The reason for that is as follows. On 26th February, 2009, the Minister issued an instruction that prisoners be removed from the Temporary Release Scheme when a deportation order is issued. The reasons for that decision were given as "it is not considered appropriate for prisoners subject to deportation to develop links, secure employment or secure housing in Jersey."
33. I was informed that the decision is applied automatically and accordingly it was applied to the applicant following the making of the deportation order in this case.
34. I have no further information concerning the reasoning of the Minister although, as the Solicitor General submitted, it is likely that the underlying rationale of the Minister's decision was that, given that the purpose of the Temporary Release Scheme is, inter alia, to assist a prisoner to reintegrate back into Jersey society, a prisoner who is the subject of a deportation order ( and whose presence is therefore considered detrimental to the community) should not be, at the same time, be permitted to start to reintegrate into Jersey society. I can well understand the force of this argument.
35. The difficulty is that, although I was not referred to any authority, the Solicitor General accepted that it was a fairly generally applied principle that a policy should normally include a discretion to depart from that policy in exceptional circumstances where the particular facts justify doing so. Whilst I do not offer any observation on the eventual prospect of success, I consider therefore that the applicant has an arguable case that a blanket policy of removing a prisoner who is the subject of a deportation order from the Temporary Release Scheme without possibility of exception is unreasonable. I therefore give leave to the applicant to apply for judicial review against the decision of the Home Affairs Minister.
36. Advocate Tremoceiro submitted that, if I were to grant leave, I should order a stay of the decision of the Minister as it applied to the applicant so as to allow him to continue to participate in the Temporary Release Scheme until the judicial review hearing takes place. However, I am not willing to grant a stay. Whilst I have granted leave because of concern about the blanket nature of the Ministerial decision, the maximum relief that the applicant could obtain if successful would be a quashing of the decision on the basis that individual consideration should be given to the applicant's case. However, it would clearly be strongly arguable that there are no exceptional circumstances in the applicant's case to justify a departure from the general policy and that any reconsideration would be likely to result in the decision to remove the applicant from the Temporary Release Scheme being upheld. In the circumstances, I think it would be wrong to order at this stage that the Temporary Release Scheme should continue to apply to the applicant until the hearing. I therefore decline to order a stay.
