It is hard to conceive of a situation in which a person who has been living in the UK for 53 years might be deported back to her country of birth, the United States. This was the reality for 75-year-old Polly Gordon, who, despite her more than half a century as a UK resident, was ordered to return to the United States after she served a 12-month sentence for the supply of a controlled drug. In this article, we will explore the decisions made by the court in the deportation case of Polly Gordon.
Who is Polly Gordon, and why did she face deportation?
Polly Gordon is a US national who has been living in the UK for over 53 years, having moved here in her early 20's. She gained Indefinite Leave to Remain in 1977. In July 2019, she received a 12-month sentence from the Edinburgh Sheriff's Court after she was found to have supplied a controlled drug, as a result of which the Home Office sought her deportation under section 32(5) of the UK Borders Act 2007.
Gordon's sentence was shortened initially to 18 months on account of her poor health and then further to 12 months because she entered an early plea.
First-Tier tribunal appeal against deportation lost
Gordon appealed her deportation to the First Tier of the immigration court. The judge in the matter took into consideration her extremely poor health – limited mobility, atrial fibrillation, colitis, difficulties with eating solid food, and shingles. In addition, the judge noted that if Gordon were to return to the US, she would not be eligible to access federal health programmes due to her prolonged absence from the country. Furthermore, the judge acknowledged that there was a low risk of Gordon reoffending. Confirming his concern, he stated, "I presume that given her age and infirmity, she will feel the impact of leaving her home country of the last five decades more than most".
Core to this appeal was whether HA (Iraq) v Secretary of State for the Home Department [2020] EWCA Civ 1176 in which the Court of Appeal decided that the actual sentence duration rather than the sentence before discount should be used as the basis for deportation. The first-tier judge decided to ignore this, and on the basis of the 18-month pre-discount sentence, went on to conclude on this matter, "According, I am not satisfied that the appellant's offending is at the lower end of the scale".
First-tier Tribunal Judge Komorowski backed the Home Office and agreed she should be deported, stating, "There will be certain material hardships the appellant will face on her relocation. 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. These matters, though, are of limited (if any) relevance to her ability to reintegrate. They only have an indirect bearing to the extent that they might impede her ability to form relationships. I am not satisfied these hardships will pose any significant obstacles to reintegration".
As a result of the First-Tier decision, Gordon brought her appeal to the Upper Tier court.
Second Tier appeal was successful
In the case of Gordon (deportation; sentencing discounts) [2021] UKUT 287 (IAC), Polly Gordon further appealed her deportation and the decision made by the First-Tier tribunal. The matter was considered by Hon. Mr Justice Lane, President, Mr C M G Ockelton, Vice President, and Lord Matthews.
The Upper Tier judge acknowledged that Ms Gordon's health had further deteriorated – she now requires a Zimmer frame, having fallen and suffering a serious injury in April 2021. He also acknowledged the difficulty of reintegrating into a country at an advanced age and with significant health issues. Despite all of this, the judge still stated, "Overall, albeit by a narrow margin, we find that the appellant has not demonstrated that there would be very significant obstacles to her integration, were she to be returned".
The Upper Tier Tribunal also found that:
- The First-Tier 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
- Even if the pre-discount sentence was relevant in determining the seriousness of the offence, 18 months is still at the lower end of the scale of seriousness
The case was then assessed in accordance with ECHR Article 8 section 117C (6). This deals with whether it is in the public interest to deport criminals who have migrated to the UK. On this assessment, the judge found that because the sentence received was at the very bottom of the sentencing scale, "this fact tempers the strength of the public interest in this particular case". The judge went on to say on this matter that several factors moved the scale in favour of Ms Gordon's Article 8 rights, including her over half a century residence in the UK (mainly with ILR), private life "of some quality", significant health issues, advanced age, and the likelihood of a precarious financial position in the US.
As a result, the Upper Tier Tribunal found in favour of Ms Gordon.
Final words
The case of Polly Gordon highlights that the Home Office is actively seeking to remove individuals who have been living in the UK with ILR for many years if they are convicted of a criminal offence. In this case, they were prepared to do this despite her serious health concerns and the very low severity of her sentence. The impact that this case must have had on a person in their later years and with such health problems can only be imagined. The other significant point, in this case, was that the Upper Tribunal were unwilling to allow the Scottish and English courts to diverge when deciding how and whether to use the sentence duration to determine the seriousness of the offence.