Peter Gray v Attorney General of the British Virgin Islands

• Jurisdiction: British Virgin Islands
• Judge: Ellis J.
• Judgment Date: 04 May 2017
• Neutral Citation: VG 2017 HC 9
• Judgment citation (vLex): [2017] ECSC J0504-2
• Court: High Court (British Virgin Islands)
• Docket Number: Consolidated Claim Nos. BVIHCV 2016/0037 and BVIHCV 2016/0050
• Date: 04 May 2017

[2017] ECSC J0504-2

EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE

Consolidated Claim Nos. BVIHCV 2016/0037 and BVIHCV 2016/0050

IN THE MATTER OF SECTION 40 OF THE IMMIGRATION AND PASSPORT ACT, CHAPTER 130 OF THE LAWS OF THE BRITISH VIRGIN ISLANDS

IN THE MATTER OF A NOTICE OF DEPORTATION AGAINST PETER GRAY DATED APRIL 9, 2015 MADE PURSUANT TO SECTION 18 OF THE CONSTITUTION OF THE BRITISH VIRGIN ISLANDS

IN THE MATTER OF STATUTORY INSTRUMENT NUMBER 48 OF 2015 - DEPORTATION ORDER DATED JUNE 26, 2015 AND GAZETTED ON JUNE 26, 2015

IN THE MATTER OF ARTICLES 9 AND 19 OF THE CONSTITUTION OF THE VIRGIN ISLANDS 2007

IN THE MATTER OF AN APPLICATION BY PETER GRAY FOR REDRESS PURSUANT TO ARTICLES 31 OF THE SAID CONSTITUTION FOR LIKELY CONTRAVENTION OF ARTICLES 9 AND 19 THEREOF IN RELATION TO HIM

Between:

Peter Gray

1 ^st Applicant/Claimant

And

Julie Foreman

2 ^nd Applicant/Claimant

And

Dkhoya Quammie (By next of Friend, Julie Foreman)

3 ^rd Applicant/Claimant

And

Kaila Ryan

4 ^th Applicant/Claimant

And

Kia Foreman

5 ^th Applicant/Claimant

and

The Attorney General of the British Virgin Islands

1 ^st Respondent/Defendant

And

The Chief Immigration Officer of the British Virgin Islands

2 ^nd Respondent/Defendant

Appearances:

Ms. Ruth-Ann Richards with her Ms. Christina Hart of Maximea and Co., for the Claimants

Ms. Maya Barry, Senior Crown Counsel, for the Defendant

Ellis J.

1 The facts out of which this Motion arises are not in dispute and are summarised below:

• (a) The First Claimant is a national of Jamaica. Although, he had previously visited the Territory of the Virgin Islands for brief periods, he only took up employment as a labourer in 2008 on a work permit held by Newton Construction. His documents indicated that he returned to Jamaica and after a brief period he again took up employment in the Territory on a 2011 work permit held by B's Landscaping Services. He has remained continually resident in the Territory since 2010.

• (b) He continued in the employment of B's Landscaping until 10 ^th August 2012 when he was arrested and charged with the offence of Indecent Assault of a Woman and the offence of Criminal Trespass. On 5 ^th September 2014, he was convicted and sentenced to 15 months for the charge of Indecent Assault of a Woman and 10 months on the charge of Criminal Trespass. The sentences were to run concurrently.

• (c) In October 2010, the First Claimant fathered a female child, Taylor Smith. She is his only natural child. She currently resides with her mother who is a Belonger. The First Claimant no longer has a relationship with Taylor's mother but he avers that he is still very much a part of Taylor's life and has a meaningful bond with her that continues to persist notwithstanding his incarceration.

• (d) The Second Claimant is a national of St. Kitts. She has lived and worked in the Territory for the past 23 years. She is a hairdresser and manages the "Simply Beautiful" Salon. The evidence before the Court is that the First and Second Claimants have been in a romantic relationship for the past 6 years. They have lived together since October 2010 and their relationship has also survived the First Claimant's prosecution, conviction and incarceration. They state that they are planning to take steps to marry. However, the Second Claimant is still legally married to her husband and from all accounts no divorce proceedings have been initiated.

• (e) The Third to Fifth Claimants are the daughters of the Second Claimant: (D'khoya-14 years, Kaila-26 years and Kia-24 years). The Claimants contend that although these children were fathered by 3 separate persons, they enjoy a close relationship with each other. The Second Claimant also has a son Dillon Quammie who is also an adult and not a party to this Claim. Save for D'khoya whose Belonger status is still pending, all of the Second Claimant's four children are all Belongers.

• (f) Kia and Kaila do not currently reside in the Territory. Kalia lives and works in St. Kitts and Kia is currently studying architecture in Atlanta, USA. Dillon resides with his father but visits with his mother on weekends. D'Khoya is a 14 year old minor and still resides with the First and Second Claimants. The Second Claimant avers that although her first three children are adults, she is still responsible for them. At paragraph 12 of her first affidavit and paragraph 14 of her second affidavit, she details that she provides financial support to her children and that prior to his incarceration the First Claimant was a source of support all of them.

• (g) The First Claimant concurs that ever since he came into Second Claimant's family, he has helped to take financial and daily care of them and that they have forged a meaningful bond. He says that he considers them his children and has sought to treat them as a father would.

• (h) Upon his release from prison, the First Claimant's employer applied for a work permit to allow him to resume his duties. The First Claimant avers that on 25 ^th January 2016, he was informed by the Labour Department that his work permit was ready and he was instructed to collect the same on 29 ^th January 2016. However, he was unable to collect the same and because by then (9 ^th April 2015) the Office of the Governor had served him with a Notice of Intention to Deport. In this Notice, the Governor sought to have the First Claimant provide representations showing why the Governor should not exercise his discretion to deport him. These representations were submitted via Counsel on 15 ^th April 2015 and referenced inter alia, the First Claimant's relationship with the Second Claimant and her children; his meaningful relationship with his daughter; the fact that he is not a career criminal and his contribution to the society.

• (i) On 23 ^rd April 2015 the First Claimant's attorneys wrote to the Governor seeking a pardon or remission. On 24 ^th June 2015, the Governor notified Counsel of the First Claimant of his decision to deport him. On 26 ^th June 2015, the Governor caused a deportation order to be issued and published as Statutory Notice, No. 48 of 2015 pursuant to section 40 (1)(b) of the Immigration and Passport Act Cap. 130.

• (j) In accordance with section 40 (3) of the Immigration and Passport Act, the First Claimant appealed against the deportation order on 7 ^th July 2015. Grounds of Appeal were later advanced on 13 ^th August 2015 and statement and submissions were provided in support on 21 ^st October 2015 and 27 ^th October 2015. The Governor convened the appeal hearing on 27 ^th October 2015. After hearing the Claimant he reserved his decision.

• (k) In a decision letter dated 28 ^th January 2016 (received on 29 ^th January 2016), the Governor dismissed the First Claimant's appeal. In dismissing the appeal, the Governor noted the nature and the gravity of the First Claimant's offending and he made clear his opinion that the First Claimant's deportation would not be a disproportionate interference with his rights protected by section 19 of the Constitution.

• (l) Thereafter, Claimants filed an Amended Originating Motion in which they seek the following relief:

  • (i) An order that the deportation order - Statutory Instrument No. 48 of 2015 is a disproportionate interference with the Claimants' fundamental right to private and family life enshrined on section 9 and 19 of the Constitution;

  • (ii) An order that the deportation order is a disproportionate interference with the right of the First and Second Claimants to marry as enshrined in section 20 of the Constitution;

  • (iii) An order that the Statutory Instrument No. 48 of 2015 is a disproportionate interference with the rights of the First and Second Claimants to confirm the family that they have founded or to found a family as enshrined in section 20 of the Constitution;

  • (iv) An order that the Statutory Instrument No. 48 of 2015 is a disproportionate interference with the First Claimant's fundamental right to private and family life with his daughter Taylor Smith as enshrined on section 9 and 19 of the Constitution;

  • (v) An order of certiorari quashing Statutory Instrument No. 48 of 2015 which orders the deportation of the First Claimant;

  • (vi) A declaration that the deportation of the First Claimant is a disproportionate interference with the Claimants' fundamental right to private and family life as enshrined on section 9 and 19 of the Constitution;

  • (vii) A declaration that the deportation of the First Claimant is a disproportionate interference with the rights of the First and Second Claimants to marry as enshrined in section 20 of the Constitution;

  • (viii) A declaration that the deportation of the First Claimant is a disproportionate interference with the rights of the First and Second Claimants to confirm the family that they have founded or to found a family as enshrined in section 20 of the Constitution;

  • (ix) A declaration that the deportation of the First Claimant is a disproportionate interference with the First Claimant's fundamental right to private and family life with his daughter Taylor Smith as enshrined on section 9 and 19 of the Constitution;

  • (x) An order quashing the Governor's decision to proceed with the order for deportation of the First Claimant;

  • (xi) Costs.

COURT'S ANALYSIS

2 The Amended Originating Motion raises two main issues for determination: (1) Is the First Claimant's deportation a disproportionate interference with the Claimants fundamental right to private and family life? and; (2) Is the First Claimant's deportation a disproportionate interference with the First and Second Claimant's fundamental right to marry and found a family?

3 Each issue has been separately considered by the Court. In so doing, the Court took into account the following affidavit evidence:

• i. Affidavits of the Peter Gray

• ii. Affidavits of Julie Foreman

• iii. Affidavit of Kaila Ryan

• iv. Affidavit of Shelly Pemberton

• v....