Portuguese unlawful immigrant jailed for dealing medicine gained proper to remain in UK as a result of deportation could be ‘harsh’ on her son – who lives along with his grandparents

A Portuguese woman jailed for drug dealing can stay in the UK after a court found that deportation would be harsh on her son – despite him not even living with her.

An immigration judge concluded Joana Calcada, 46, does not present a ‘threat to society’, while simultaneously accepting she was a ‘persistent offender’ and an illegal immigrant. 

The First-tier Tribunal ruled it would be ‘unduly harsh’ and ‘disproportionate’ for her British child – who lives with his grandparents – if she was to be deported.

But despite winning her asylum case, Calcada will have to face fresh proceedings after the Home Office successfully appealed against the decision.

A new judge accepted the Government’s argument that there had been an error in law because the initial judge did not consider her criminality.  

Calcada arrived in the UK from Portugal in 2003 and applied for leave to remain in January 2023.

But during her time in Britain she picked up a string of criminal convictions, mostly for drug-related offences.  

Then, on April 12 2023, she was jailed for two years and seven months for two counts of supplying Class A drugs.

The following month, she made a human rights claim based on her long residence in the UK and the fact that her son had grown up in the country.

She said it would be ‘unduly harsh’ to expect her son to move to Portugal with her if she were deported. 

The Home Office argued she must be deported.

The First-tier Tribunal ruled that she did not pose a ‘genuine, present and sufficiently serious threat to society’ and that the decision to deport her would be ‘disproportionate’.

The Home Office appealed against the decision at the Upper Tribunal, claiming that there was an error in law.

Joana Calcada, 46, was jailed for two years and seven months for two counts of supplying Class A drugs in April 2023

Upper Tribunal Judge Therese Kamara has now concluded that Calcada’s criminal history had not been taken into account and said that allowing her appeal did not refer to the ‘interests of society’.

She said: ‘The judge did not make any findings in respect of whether Calcada was a relevant EU national in terms of length and nature of her residence, nor did he engage with the prospect of her criminality and periods of imprisonment interrupting that residence.

‘The judge did not identify the level of protection to which she was entitled and made no reference to the fundamental interests of society before allowing the appeal under the Regulations.

‘The judge did not mention the unduly harsh stay or go scenarios and did not engage with the fact that the Calcada’s son was residing with the grandparents who had been looking after him.

‘She relied upon a relationship with a fiancé but the judge made no findings as to whether the undue harsh test was met in this respect.

‘The entirety of the judge’s findings were legally unsound and insufficiently reasoned and are set aside with none preserved.’

Judge Kamara said that due to the errors made, Calcada’s appeal would be remitted to the First-tier Tribunal to be re-heard.