In a case involving complex relationship ties, Jamaican national Peter Gray has lost his legal battle to remain in the British Virgin Islands (BVI).
Gray was ordered deported in April 2015 after he entered a woman’s bedroom and sexually assaulted her. He was convicted and sentenced to 10 months for criminal trespass, and 15 months for indecent assault. The sentences ran concurrently.
Gray eventually appealed against the deportation order, but Governor John Duncan turned that down.
Gray later brought the matter before the High Court, and Justice Vicki Ann Ellis presided over the hearing.
The court heard that Gray was in an ‘acrimonious’ relationship with a BVI woman. That relationship, which ended years ago, produced a daughter.
Gray told the court that his deportation would disrupt the family life he enjoys with different persons, including his six-year-old daughter.
But the judge replied: “While the court does not doubt the strength of the First Claimant‘s love for his daughter, the scope of his access and visitation is undefined, and there is little indication of the regularity or the depth of the contact. Further, the lack of any real detail gives rise to significant doubt as regards his financial support of [his daughter]. It appears to the court that his role in her day to day care and upkeep has also been minimal.”
Furthermore, Gray cited the potential disruption of family life in relation to his second romantic relationship – this time with a St Kitts woman.
The St Kitts woman has four children – a minor; and three young adults who are BVI citizens living on their own. None of these four children is fathered by Gray.
In examining the matters regarding Gray’s second relationship, the judge said: “Although the court does not doubt the genuineness of these relationships, the court cannot ignore the fact that the Second Claimant (St Kitts woman) is still legally married to another man, and there are no tangible plans to resolve this – six years into their (St Kitts woman and Gray’s) relationship.”
The judge however stated that, from all accounts, the woman from St Kitts and Gray have “a genuine and loving relationship, which has survived [Gray’s] prosecution, conviction and incarceration on account of sexual offences involving a female virtual complainant”.
The judge also found that Gray has a ‘close’ relationship with the St Kitts native’s young child – not necessarily the adult children who live on their own.
St Kitts and Jamaica too ‘difficult’
Further analyzing the case, Justice Ellis stated that Gray and the other claimants essentially indicated that “deportation would mean the breakup of the family, because they would simply not be able to relocate to Jamaica” to be with a deported Gray.
The judge also noted that Gray’s attorneys – Ruth-Ann Richards, along with Christina Hart – “stressed the very high crime rate in Jamaica as a basis for which deportation would be prejudicial”.
But the judge noted: “This argument was not pursued with much enthusiasm, and no authorities were advanced in support of the contention that a high crime rate in the receiving state should militate against the deportation of convicted non-nationals. While consideration could be given to possible threats of political, social or cultural victimization, no such issues are raised in the case at bar.”
Meanwhile, Senior Crown Counsel Maya Barry, who represented the government (Attorney General and Chief Immigration Officer), argued that the claimants have failed to demonstrate that relocation would mean anything more than “a difficult inconvenience”.
According to court documents, the government’s lawyer also argued that “Jamaica is an English-speaking country with a socio-economic background and culture which is not unlike the BVI”. The lawyer further submitted that there are no political, language or cultural barriers in Jamaica, which would militate against deportation.
The lawyer representing Government also noted that Gray, along with the other claimants in the case, all failed to consider the possibility that family ties could be established in St Kitts – if not Jamaica. She noted that Gray, in fact, spent time in St Kitts visiting his current girlfriend‘s family. The judge agreed.
Gray’s lawyer then tried to make a comeback, saying that the “same difficulties” that would be experienced in Jamaica would also be experienced in St Kitts.
No ‘less intrusive measure’ found
In the meantime, Gray’s lawyer told the court that there is no evidence her client is “predisposed to criminality,” and there is “no overwhelming need to protect society from him”.
She added that, given the strength of Gray’s personal and family ties, “deportation would be disproportionate” because it would “devastate those relationships”.
The judge, in response, said the court has struggled to find “a less intrusive measure” than deportation.
“In considering the question of proportionality, a decision maker must focus on whether there was a less intrusive measure, which could have been utilised to accomplish the objective. None has been suggested to the court, and the court has struggled to find a positive answer to this query,” Justice Ellis said.
She continued: “Having considered all of the relevant evidence and, having weighed the level of interference against the prejudice to the legitimate aim pursued in declining deportation, this court cannot conclude that [Gray‘s] deportation from the Territory of the Virgin Islands is disproportionate to the aims pursued and not reasonably justifiable in this democratic society.”
Justice Ellis added that, while the right to “found” a family may be a strong right in the BVI, it is by no means an absolute right, and it may be qualified on grounds set out in the Virgin Islands Constitution.
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