Royal Court quashes Minister’s deportation order

Wednesday 03 February 2021

The Royal Court has quashed the Home Affairs Minister’s attempt to deport a long-term Jersey resident who indecently assaulted a young girl.

At the time of conviction, neither the Court nor the Crown had suggested the man should be deported in addition to his jail term, but the Minister nonetheless made an order for him to leave the island.

Having refused the man’s attempts to have the order revoked, the matter was brought before the Royal Court in a Judicial Review in November, which concluded that the Minister’s actions were “disproportionate.”

The Royal Court’s judgment, which has been anonymised, was only made public for the first time this week.

In it, Commissioner Sir Michael Birt - sitting with Jurats Olsen and Pitman - stated that the individual was at a low risk of reoffending and that a deportation order threatened to break up his family life.

Pictured: Neither the Royal Court or the Crown had recommended the individual's deportation.

The review outlines that the individual had been arrested in 2016 and was in prison until April 2019, having been convicted for three counts of indecent assault on a child in 2006 and 2007.

Though the Crown and the Royal Court did not make a recommendation of deportation, a notice of possible deportation was nonetheless served to the individual in April 2018 - something which was said to have come as a “huge shock” to him.

In May of that year, a report on the individual was prepared by the Assistant Director of Customs and Immigrations Services (CIS) for the Home Affairs Minister, highlighting that the individual had lived in Jersey for many years, was at low risk of re-offending, had no previous criminal record outside of the offences, and had a wife  and child in the island.

For these reasons and his Article 8 human rights, which refer to the right to respect for private and family life, the report advised “against making a deportation order against him.”

Despite the recommendations, the Minister followed through with an order of deportation in July 2018, with a note from a meeting saying he found it “to be proportionate.”

This was then challenged by the individual, who applied for the order to be revoked in December 2018. He was represented by Advocate Sarah Dale, who wrote a lengthy letter in his favour.

Equally, the CIS Assistant Director wrote a follow-up letter again reiterating his position that there were “strong” Article 8 human rights arguments that “could deem the deportation order to be disproportionate.”

Pictured: The CIS Assistant Director warned that there were "strong" human rights arguments against deporting the offender.

After this application, the Minister still decided not to revoke the decision, with a letter to the individual in January 2019 stating that “the priority of the island is the protection of children. Therefore, the Minister concluded that your continued presence in the island was detrimental.”

The letter added that, when considering his Article 8 rights, the Minister said he had more family living elsewhere, outside of Jersey, and there was no evidence his wife would not move with him, despite an assertion stating otherwise.

The individual was then granted leave to apply for Judicial Review, which was granted by the Bailiff in March 2019.

The eventual review resulted in a ruling against the Minister’s decision, with the Court stating that his refusal to revoke the deportation order “fell outside [the] discretionary area and was disproportionate.”

Explaining their decision, the Royal Court said that the individual had arrived in Jersey as a teenager, was married with a child, adding that he had not re-offended since the offence “some 11 to 12 years” prior.

They stated that any deportation would break up the family unit.

The court also highlighted an "error" in the Minister’s judgement, noting that, while he had said the individual had displayed "a lack of remorse", Advocate Dale had pointed out that his evidence was from a letter 10 years prior, and since then he had written a letter of remorse.

Additionally, though the Minister had pointed out the individual had more family outside of Jersey, the court found he had “been in error” only considering the number of people, rather than how close they were in comparison to his relationships with people in Jersey.

Summing up, the court stated: “We fully accept that the Minister is entitled to place great weight upon the gravity of the offending in this case and the need to protect children in this island but, for the reasons set out above, we have nevertheless concluded that the Minister should not have concluded that, on the particular facts of this case, it was proportionate to deport the Applicant.”