The Secretary of State for the Home Department v GD (Ghana) (Rev 1)

Judgment Approved

LORD JUSTICE DAVID RICHARDS:

Introduction

In October 2011, the respondent was convicted of an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 of causing or allowing the death of a child. She was sentenced to a term of imprisonment of three years. On 9 April 2013, the Secretary of State issued a deportation order for the respondent, against which the respondent appealed. Her appeal was allowed by the First-tier Tribunal (Judge Woodhouse and Mrs A.J.F. Cross de Chavannes) (the FTT) by a Decision issued on 11 February 2014. The Secretary of State’s appeal to the Upper Tribunal (Andrews J and Judge Kebede) (the UT) was dismissed by a Decision issued on 13 May 2014. Permission to appeal to this court was granted by Jackson LJ.

The grounds of appeal, shortly stated, are as follows. First, both Tribunals proceeded on a false assumption that a residence order under section 8(1) of the Children Act 1989 in respect of the respondent’s children was still in force and, in any event, misunderstood the legal effect of a residence order. Second, both Tribunals failed to weigh the very high public interest in the deportation of foreign criminals against the applicable rights of the respondent under article 8 of the Convention of Fundamental Human Rights and Freedoms and failed to consider the options that were open to the respondent’s family if she were deported. There was a third ground of appeal, that both Tribunals failed to treat the relevant provisions of the Immigration Rules as a comprehensive code and proceeded on the basis that there was room for a separate consideration of the respondent’s article 8 rights outside the Rules, but that ground was not pursued in the light of the Supreme Court’s decision in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 ; [2016] 1 WLR 4799 .

Preliminary point

The Secretary of State filed her appeal notice out of time. The deadline was 28 December 2014, but the appeal notice was not filed until 30 January 2015. In the appeal notice, application was made for an extension of time and an explanation of the delay was given by the solicitor who handled the appeal and had direct personal knowledge of the circumstances of the delay.

When giving permission to appeal, Jackson LJ extended time on the grounds that the delay was short and coincided with the Christmas and New Year period. His order was sealed on 1 July 2015 and sent to the parties shortly afterwards