Obie wrote:
Mr Rusty you seem to have given no regards to the Union Citizen aspect of the case, the UK borders agency duty under section 55 of the UKBA act 2007 and the Tribunal's decision in Sanade. The changes in the immigration rules, which provides for cases where sentence was within the 4 years margin.
Thank you. I confess that in addressing the mother's status vis-a-vis EEA Regulations I overlooked the child's possible rights under UK and ECHR judgements. The Sanade judgement is interesting, as although the applicant, an Indian citizen who served a 12 months sentence for a minor sexual offence, won his case, it was considered along with 2 Jamaicans who both had flaky immigration cases and convictions for supplying Class A drugs - both of their cases were dismissed. In the judgement there was a particularly interesting comment as follows:-
Nevertheless, if the appellant does lead a law abiding life in the future, and if he does maintain contact with his children and this present partner, it will be open to him to apply to revoke this deportation order at some point in the future after his return to Jamaica. Although a deportation order is indefinite and the rules suggest that a substantial passage of time should elapse before an order will normally be revoked that is subject to the principle of proportionality in the light of the state of the relationship in the future. We make no observation on his prospects of future success, but it is not the case that deportation in such cases always lasts forever. Further we see no reason why the children would need to lose all contact with their father if he is returned to Jamaica. The prospect of return if he maintains contact within his family, supports them financially, makes a regular application for admission and ceases criminal activity is something to which we have regard in the exercise of the proportionality balance.
Of course, I don't want to suggest that this directly applies to the OP's partner, but it gives an indication of the way the courts might look at it, and 'Sanade' makes it clear that the nature and severity of the criminal offence are fundamental in balancing family life against deportation.
The criteria for revoking a DO are as set out previously, and the specified period for the OP's partner is indefinite. Paras 398 and 399 of the Rules (where the '4 years is mentioned') come under the heading 'Rights of Appeal against a decision not to revoke a DO' and the "exceptional circumstances' criterion is repeated. Given that the right to family life featured in the original appeal, logic suggests that she will have to show some significant change of circumstances for an appeal against revocation to succeed.
