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R (Stephenson) v. Secretary of State for the Home Department [2010] EWHC 704 (Admin)

DATE: 31 Mar 2010

Judicial review concerning the ability of a foreign criminal with a wife and child settled in the UK to rely on Article 8 ECHR to prevent his deportation

In this case, the Claimant, a Jamaican citizen with limited leave to remain in the UK, had been convicted of a series of serious convictions over a period of five years including possession of crack cocaine with intent to supply and possession of a machete and imitation firearm. A deportation order was issued against him following his release from prison. His appeal before the Asylum and Immigration Tribunal failed in December 2006, the Tribunal rejecting his assertion that because he had a UK-based wife it would be contrary to Article 8 ECHR to deport him (noting that she had accepted that she could relocate with him to Jamaica).

Subsequently he applied for the deportation order to be revoked on the basis that he had now had a son, and it would be contrary to Article 8 ECHR to expect his wife and son to relocate with him to Jamaica since they would not have the standard of living that they enjoyed in the United Kingdom. The Secretary of State refused the application and certified his human rights claim as 'clearly unfounded' under s.94 of the Nationality Immigration and Asylum Act 2002, thereby denying the Claimant the right to make an in country right of appeal. The Claimant sought judicial review of the certification under s.94.

Having considered the case-law of the European Court of Human Rights and the domestic courts, Foskett J allowed the claim, rejecting the argument that it was necessary for an applicant when seeking to revoke a deportation order in these circumstances to show something more than the mere existence of a wife and child in order to create an arguable Article 8 claim.

Charles Banner appeared for the Secretary of State for the Home Department, instructed by the Treasury Solicitor.