Thank-you for your question. I have represented many individuals in a similar situation to your partner. In my experience, the Home Office will try and commence deportation proceedings against your partner if either the Sentencing Judge recommended deportation or he was sentenced to at least 12 months imprisonment. If neither of these conditions apply however then the Home Office is unlikely to try and deport him. If the Home Office does issue a notice of intention to deport then your partner will have a right of appeal to an independent Immigration Judge He will be able to argue that deportation would constitute a violation of his right to private and family life in the United Kingdom as guaranteed by Article 8 of the European Convention on Human Rights. It will then be for the Judge to decide whether deportation is proportionate weighing, on the one hand, the degree of interference that will be caused to your partner's family and private life (and that of his son and you) and, on the other, the public interest in preventing disorder or crime. In order to ensure that any appeal is properly prepared and argued you should seek professional legal representation. From the information that you have provided it seems likely that if the Home Office does commence deportation proceedings then they will try and argue that your partner should be deported because he has committed a serious offence, he has used deception and he has been living illegally in the UK. However your partner will be able to argue that he has now spent a lengthy period of time in the UK and he established a family and private life in the UK. He will need to stress the amount of contact that he has with his son and the role that he plays in his upbringing and also mention the strength of his relationship with you. If he has no previous convictions and/or a Pre-Sentence Report that assessed him as at low risk of re-offending then this will also be helpful. It will also be important for him to set out all the reasons why it is not reasonable to expect you and his son to live in Jamaica with him. Therefore, in short, even if the Home Office does decide to try and deport your partner, he does appear to have an arguable case that he should not be deported and he will be able to present this case to an Immigration Judge.
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If your partner is represented by a criminal lawyer then he should follow the advice of his criminal lawyer on the evidence and submissions that it is appropriate to make at the sentencing hearing. I am an immigration barrister so I cannot provide you with detailed advice in this regard. However, in principle, the sentencing judge will consider all mitigating circumstances when deciding what type of sentence to impose and also the severity of the sentence.
When deciding whether or not to also make a recommendation for deportation, the sentencing judge will not consider your partner's right to a family and private life in the UK. This is a matter for the Immigration Tribunal to consider - if the Home Office decides to make a deportation order and if your partner wishes to appeal. You can give evidence at an appeal before the Immigration Tribunal and explain why your partner should not be deported.
At the immigration appeal hearing your partner can instruct either a solicitor, OISC approved representative or an immigration barrister to represent him. He can also instruct more than one lawyer if he wishes.
I do represent members of the public on a private basis. However, the rules of JustAnswer prevent me from discussing this further on this site. If you wish to continue this discussion you should contact me off site.
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