The Court of Appeal has given further guidance on the convoluted and badly drafted statutory presumptions on human rights in UK law. Trying to make sense of interlocking provisions in the UK Borders Act 2007, the Immigration Rules as amended (and amended and amended) and the Immigration Act 2014, the court concludes that the latter is so badly drafted that it must considered to be a drafting error. Specifically, the court finds that as drafted the Act gives greater protection to more serious criminals than less serious ones, which must be a mistake.
The key provision is subsection (3) of section 117C of the 2014 Act. The whole section reads as follows:
117C Article 8: additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7)The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
Section 117D defines “foreign criminal”:
2) In this Part, “foreign criminal” means a person—
(a) who is not a British citizen,
(b) who has been convicted in the United Kingdom of an offence, and
(i) has been sentenced to a period of imprisonment of at least 12 months,
(ii) has been convicted of an offence that has caused serious harm, or
(iii) is a persistent offender.
It can be seen that foreign criminals are divided into three levels of despicableness:
- Convictions of less than 12 months
- Convictions of between 12 months and 4 years
- Convictions of greater than 4 years.
The exceptions at section 117C(3) are available only to those with category 3 convictions, not to those with category 2 convictions. This is nuts. Or, more learnedly:
Something has obviously gone amiss with the drafting of section 117C(3). In Inco Europe Ltd v First Choice Distribution  1 WLR 586, HL, at 592-593, Lord Nicholls (with whom the other members of the Appellate Committee agreed) explained the circumstances in which the courts in interpreting statutes can correct obvious drafting errors. In our view the lacuna in section 117C(3) is an obvious drafting error. Parliament must have intended medium offenders to have the same fall back protection as serious offenders. Mr Tam invited us so to rule.
While the judgment is a long and learned one — which not necessarily tautological — it is hard to take it all that seriously knowing that the Supreme Court is still to give judgment on the deportation rules. Whether what the Court of Appeal says here has relevance once the Supreme Court has had its say is open to doubt, although the Supreme Court is not supposed to be looking directly at the Immigration Act 2014 itself.
Watch this space.