In October, the Upper Tribunal Immigration and Asylum Chamber heard an appeal by 75-year old Polly Gordon against her deportation to the United States, where she was born. She won the appeal on the grounds of her human rights.
Gordon has been living in the UK since 1968, when she emigrated here in her 20’s. She applied for and gained permanent settlement in 1977 and has lived here ever since. On 18th July 2019, she was convicted in Edinburgh on three counts of supplying a controlled drug and was subsequently sentenced to one year in jail on 15th August 2019. When considering the length of sentence to be applied, it was first shortened to 18 months due to her ill health and a second time to one year on account of her entering an early plea.
Following her conviction and imprisonment, the Home Office applied to have Gordon deported to her native US in accordance with section 32(5) of the UK Borders Act 2007 (the court notes that this was the only reason for her deportation).
The decision to deport Gordon was appealed on account of her age, time spent in the UK, ill-health, lack of access to health care in the US, and the low risk of her reoffending. The judge acknowledged Gordon’s ill health stating:
“I find that the appellant is frail, with limited mobility, that she is unable to consume solid food, that she has suffered from shingles in the recent past, and that she takes a range of medication”.
Despite this, the judge stated, “I am unable to make any findings as to what difference deportation will make to the appellant’s health”. He also acknowledged that Gordon might face problems accessing healthcare and government assistance due to her prolonged absence from the country. In addition, the judge stated that she would need to pay for her own medication, but he was not aware of the cost or the impact of discontinuing her medicines.
The first-tier judge also looked at the impact of HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 where it was decided that the length of sentence given rather than the pre-discounted sentence duration should be used to determine the extent of offending. This was disregarded, and it was concluded that Gordon’s 18-month pre-discounted sentence was not at the lower end of offending; “I am not satisfied that the appellant’s offending is at the lower end of the scale”.
Judge Komorowski dismissed the appeal acknowledging the hardship Gordon would face if deported (“She will not be able to claim Pension Credit nor likely any US social security benefit, nor will she likely have access to free healthcare, and her ability to afford it privately will be very limited”) but also stating that these would not “pose any significant obstacles to reintegration”.
Gordon appealed to the Upper Tier Tribunal, where it was concluded that the first tier judge had made an error of law; “we find that the First-tier Tribunal Judge made an error of law in treating the index offence as one in which the relevant term of imprisonment was eighteen, rather than twelve, months”. The judge also made the point that the pre-discounted sentence was still on the lower end; “even if the First-tier Tribunal Judge was correct to view the seriousness of the appellant’s offence through the prism of an undiscounted eighteen-month sentence, that sentence was still at the lower end of the scale of seriousness”.
The judge noted the further deterioration in Gordon’s health since the first appeal, including the fact she now relies on a Zimmer frame and suffered a serious fall in the Spring of 2021. In addition, he agreed that Gordon would likely encounter some problems with reintegrating if relocated back to the US, not least due to her age and health issues. Nevertheless, the judge still reached the conclusion that Gordon had not “demonstrated that there would be very significant obstacles to her integration, were she to be returned”.
The Upper Tribunal made a final decision to find in favour of Gordon, on account of her Article 8 ECHR rights, from the perspective of her:
This case shows that the Home Office are prepared to seek the deportation of an individual if they are sentenced to imprisonment even at the lower end of seriousness, in spite of age, health, length of settlement in the UK, and difficulties with reintegrating. If you are facing a similar situation, speak to an immigration Solicitor as soon as possible, who can advise on your best options, including securing citizenship.
For assistance with your immigration law matter, phone us on 0121 777 7715 to make an appointment with one of our SRA Regulated Immigration Solicitors based in Birmingham and London.
Please note that this article does not constitute legal advice.
