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How to gather evidence in support of a non-EU deportation appeal

How to gather evidence in support of a non-EU deportation appeal

In this post, we consider the type of evidence and information which should be gathered to support the appeal of a non-EEA national who has been made subject to an order for deportation. It is adapted from our full online training course on deportation law, available to Free Movement members. The course covers deportation of both EU and non-EU citizens, with worked examples, deep dive analysis of legislation and case law and a bonus interview with Jawaid Luqmani on running a deportation appeal.

Introduction

As a general point, when gathering evidence and information in deportation appeals, one should always bear in mind the legal framework. Every piece of evidence should be tied to statutory or other legally relevant considerations which are likely to have a bearing on the outcome of an appeal.

The first task of a lawyer when attending a client for the first time will be to check that any order under the automatic deportation provisions has been lawfully made. This means checking that no exemption (such as that applying to certain Commonwealth citizens under section 7 Immigration Act 1971, for example) or ‘strict’ exception applies in your client’s case (e.g. has refugee status, was under 18 at the date of conviction, etc).

Assuming that the notice has been lawfully made, and no exemptions or ‘strict’ exceptions apply, it will be necessary to take detailed instructions in relation to the statutory considerations listed in section 117B and section 117C, and then any other factors which may come down on the client’s side of the argument.

Any assertion made by your client will have to be supported by evidence, and detailed instructions should be taken on what steps will need to be taken to obtain it.

Statutory considerations: section 117B

A judge must have regard to the factors listed in section 117B of the Nationality, Immigration and Asylum Act 2002 in any deportation appeal. This means that instructions should be taken on each of them. Although an appeal cannot be won if a client’s level of English is particularly strong, or if the individual is rich, it can certainly be lost if the reverse is true: AM (S.117B) [2015] UKUT 260 (IAC). The following questions are a starting point for each of the factors under consideration:

That maintenance of immigration controls is in the public interest (meaning that there is a public interest in having rules and enforcing them)

  1. What is your client’s immigration history? Full instructions on this point should be taken. The immigration history contained in the reasons given for deportation should be put to the client and checked for accuracy. If your client is able to provide coherent instructions, consider whether there is time available to make a Subject Access Request to the Home Office for a copy of the record.
  2. Does the client have a history of making in-time applications and respecting UK immigration law?

That migrants speak English

  1. What is your client’s level of English? If it is fluent, is there any way of showing this (e.g. a degree certificate, IELTS or other test, or bring from a majority English speaking country as listed in the Immigration Rules)?
  2. If you client’s level of English is poor, is there evidence that he or she has attended classes to improve it, or has shown willing to improve it? Is there a reason why the client has been unable to attend classes – e.g. domestic situation, access to funds etc?

That migrants are “financially independent”

  1. What is your client’s financial situation?
  2. What evidence is he or she able to provide to show that they are financially independent? If your client has a solid work history, is it feasible to obtain a letter from a previous employer? Is there time to obtain a full work history from HMRC showing national insurance contributions and confirming positions of employment?
  3. If you client is not ‘financially independent’, are there any reasons for this beyond his or her control?

That little weight should be given to a private life or relationship with a partner established when the person concerned was unlawfully resident

  1. If your client is in a relationship, full instructions should be taken on
    1. Your client’s status when the relationship was entered into, and his knowledge of that status
    2. The client’s partner’s knowledge of your client’s status, and the point at which the partner became aware of the status during the course of the relationship

That little weight should be given to the private life of a person with “precarious” immigration status

  1. Although the courts will interpret the meaning of ‘precarious’ in their own way, you should take instructions from your client on whether he believed that his status was ‘precarious’ etc. and how he or she felt about their position in the country. For example, even though a person may have limited leave to remain, they may be on a route to settlement and have established roots accordingly. This is clearly a different mindset to a person who is expecting to leave at the end of their period of leave.

It is important to remember that information on these points will not win a deportation appeal, but as the court must have regard to these factors it will be important that they are bottomed out well in advance of the hearing.

Statutory considerations: section 117C

The more serious the crime the greater the public interest in deportation

  1. Is the client able to obtain the judge’s sentencing remarks? Do these shed any light on the seriousness of the offence?
  2. Are any probation officer/offender manager reports available relating to the seriousness of the offence?
  3. If not, is there any other third party objective evidence relating to seriousness (contemporaneous mental health assessments or reports)?
  4. Although the client’s view of the seriousness of the offence is likely to be of limited influence in respect of the appeal, it will be important to take instructions as to whether or not there were any mitigating factors which they felt contributed to the commission of the offence (e.g. substance misuse, domestic situation), especially if these had not been properly explored (or mentioned) at the time of sentencing.

Although the legislation refers to two exceptions, there are in fact three, and each with multiple tests to meet. We have listed them here using our own numbering system which we hope makes them slightly clearer.

(1) Sentenced to 1-4 years: ‘Private Life’ Exception

Appellants must meet all three tests (listed here as (a)-(c)) before the exception will be considered to apply.

Exception (1)(a): lawfully resident in the UK most of his/her life

  1. If the client meets this threshold, how can the client show that he or she has been resident during this time? Evidence can come from a range of sources, in the same way that presence in the UK is demonstrated in other areas of immigration law.

Exception (1)(b): socially and culturally integrated

  1. What is the client’s ‘social’ situation? Instructions should be taken and set out in a statement and can include a broad range of factors, including employment and anything else an individual deems to be socially and culturally important to him or her.
  2. Are there any friends or family who would be willing to provide statements of support in relation to integration?
  3. Is the client a member of any community organisations, sports or social clubs?

Exception (1)(c): there would be “very significant obstacles” to his or her integration into the country to which he/she would be deported

  1. Does the client have family members in their country? Any friends? What network is the client likely to have if he or she is deported?
  2. Has the client travelled to their home country often? If so, how often and for how long? What have been the nature of those visits?
  3. Does the client speak the language? If so, how well?
  4. Is the client a member of any social or expat community groups in the UK based around their nationality? (Any such membership may tend to indicate a better understanding of the country to which he or she will be deported.)
  5. What does the client think about the prospects of integration on return? Instructions should be taken on the specific questions raised in SSHD v Kamara [2016] EWCA Civ 813. Does he or she
    1. understand how life in the society in that other country is carried on?
    2. have capacity to participate in that society? Is there any reason why your client would not be able to participate in society? Language barrier?
    3. have a reasonable opportunity to be accepted there? Is there any reason why your client would not be accepted there (i.e. sexual orientation)?
    4. have the ability to operate on a day-to-day basis in that society? Does your client have any medical issues or disabilities which might impact on this question?
  6. Any statements taken from friends or family members should also reflect on the questions raised in Kamara.

If there is evidence that your client has been lawfully resident in the UK for most of his or her life or comes close to meeting (a), then (b) and (c) should almost certainly be pursued.

(2) Sentenced to 1-4 years: ‘Family Life’ with partner exception

Again, both limbs of the test (a) and (b) must apply if the exception will be considered to apply.

Exception (2)(a): he or she has a genuine and subsisting relationship with a partner who is British or settled

  1. Is the client in a genuine and subsisting relationship with a British of settled partner? What evidence can be provided of this?
  2. Shared address (tenancy agreement, utility bills in both names)? Shared financial responsibility (bank statements)?
  3. Evidence from social media: print out of Facebook posts, WhatsApp chats etc
  4. Is the partner willing to come to court to provide live evidence? Can statements be provided either way?

Obtaining evidence of a relationship is something that most immigration practitioners will have had to do at some point, and there are many ways of doing it. We have not therefore provided an exhaustive list of the evidence which might be obtained here.

Exception (2)(b): the effect of deportation on the partner would be “unduly harsh”

  1. What would the impact on the partner be? Detailed instructions should be taken, and evidence sought to support any assertions. A statement should almost certainly be taken from the partner to explain how the relationship would be affected, and the impact on him or her.
  2. Is there a relationship beyond the normal bonds one might expect between a couple? For example, what would be the impact on either party’s mental health? Can a report be obtained to substantiate this?

In the absence of professional reports, statement evidence will be very important where trying to demonstrate this point and the harshness of any contemplated separation.

(3) Sentenced to 1-4 years: ‘Family Life’ with a child exception

As with the other two exceptions, both limbs of the test must be made out if the exception is deemed to apply.

Exception (3)(a): he or she has a genuine and subsisting relationship with a child who is British or has lived in the UK for seven years

  1. Does your client have such a relationship? What is the nature of the relationship?
  2. What evidence can be obtained to demonstrate the relationship exists (e.g. birth certificate, if parental, or letter from school confirming attendance at parents evening or from GP confirming attendance at appointments/listed as next of kin etc)?
  3. What evidence is there that the relationship is genuine and subsisting? Photo albums? Social media evidence? Evidence from the child?
  4. What evidence can be provided that the child has been living in the UK for seven years (if not already covered by the other evidence provided, and if not British)?

The question of obtaining evidence (either in the form or a statement, or live evidence at the tribunal) from a child is always a vexed issue, and must be a decision taken on a case by case basis.

Exception (3)(b): the effect of deportation on the child would be “unduly harsh”

  1. Need to establish firstly a clear idea of the child’s circumstances before addressing the key question: what are the best interests of the child?
  2. Important to gather the following information in relation to this question
    1. their age;
    2. the length of time that they have been here;
    3. how long they have been in education;
    4. what stage their education has reached;
    5. to what extent they have become distanced from the country to which they will need to go if accompanying your client if they are from the same country;
    6. how renewable their connection with it may be if they are;
    7. to what extent they will have linguistic, medical or other difficulties in adapting to life in that country; and
    8. the extent to which the course proposed will interfere with their family life or their rights (if they have any) as British citizens.
  3. How will the loss of your client affect the child? In what ways will this impact be felt?
    1. Practically?
    2. Emotionally? Consideration should be given as to whether a social worker’s report can be obtained to confirm this
  4. Have there been any other signs of behavioural change by the child during the prison sentence and/or deportation proceedings? Is this a sign of things to come?
  5. Is the child old enough to give evidence? Consider whether the views of the child can be given via live evidence at the tribunal, or through other ways.

Sentenced to 4+ years: “very compelling circumstances”

Where an individual is sentenced to four years or more, they will not be able to argue that they fit within the statutory exceptions under section 117C.

For these individuals, and for those who do not meet all of the relevant statutory tests, they will need to show that there are “very compelling circumstances” in their case which mean that they should escape deportation. The Supreme Court provided some helpful guidance on this in R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 at paragraph 55.

The “Kiarie” considerations

While there is a lot of crossover, the guidance given by the Supreme Court is arguably wider than the statutory scheme, and allows for consideration of a broader range of factors.

Assuming you have exhausted the evidential enquiries made in relation to the statutory considerations, we look at what other enquiries might be made based on the guidance given in Kiarie, with factors specifically not covered by section 117C highlighted in bold:

(a) the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;

This broadly reflects exception 1(a), above, but specifically refers to employment, and frames the question of integration in a slight different way, beyond social and cultural integration and looking at a broader swathe of factors which might impact upon integration.

(b) the quality of his relationship with any child, partner or other family member in the UK;

Relationships with family members who are not either a British child, or a child who has not spent more than seven years in the UK, or a partner, are covered under the Kiarie considerations. If your client is a carer for an elderly grandparent, for instance, or an uncle who plays an active role in the lives of his nephews and nieces, then full instructions would need to be taken about these relationships, the nature and extent of the role, and the impact on those who would lose out if your client is deported. If those who would lose out are children, then the best interests considerations come into play.

Lord Phillips emphasises in this guidance the ‘quality’ of the relationship(s), and so, again, statements and other high-quality evidence will be necessary to made good any assertions that strong relationships exist outside of the narrow spouse/child parameters of the statute.

(c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;

The language here is softer than the ‘unduly harsh’ requirement of the statute. Although evidence gathered relating to exceptions 2(b) and 3(b) will probably go some way to covering this, if it does not then further instructions should be taken and evidence gathered which directly addresses the question: how will the relationship be sustained, if at all?

It is up for debate whether the importation of the word ‘reasonably’ affects the high barrier presented by the ‘unduly harsh’ wording in the statute. Either way, the evidence-gatherer should take instructions on anything which inhibits a left-behind partner or child from joining or visiting a deported foreign national might be relevant. This might include employment or other childcare responsibilities in the case of a partner, or education or the wider best interest in the case of a child.

(d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;

As set out above, the statutory scheme is arguably limited to children of the individual being deported. If there was any doubt about this, the Supreme Court dispels it, making specific reference to the welfare of any child in the UK. Evidence should therefore be gathered accordingly, making explicit reference to relationships that your client has with children in his or her wider family.

(e) the likely strength of the obstacles to his integration in the society of the country of his nationality;

This is broadly covered by the statutory scheme.

(f) any significant risk of his re-offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform.

This is not really covered by the statutory scheme at all, and is really one of the sections of the speech which suggests we are back to an old-school balancing act between the public interest and the rights of the individual (otherwise, where does it fit in?). For evidential purposes, let’s break it down:

‘Risk of reoffending’

When your client was sentenced, he would usually have been subject to a risk assessment by an agency of state. This used to be called the National Offender Management Service, although this has now been renamed HM Prison and Probation Service. Whatever it’s called, there should be a risk assessment. It will be important to obtain this document, especially if favourable to your client.

There may also be a pre-sentence report. This will also be important to obtain, especially if it recommends a non-custodial sentence, or refers or reinforces any of the points your client is making in mitigation.

The judge will usually have given written remarks when sentencing your client. These are known as sentencing remarks. These can sometimes take some digging to get hold of, but if you know the court where your client was sentenced, and the date, court staff can usually make the document available to you.

In the event that these documents are unhelpful to your client, you might consider instructing an independent expert to assess risk.

Matters relevant to risk should also be covered in detail in the statement, including evidence of changed circumstances which might suggest that risk of reoffending is reduced (e.g. gainful employment, the birth of a child etc)

‘Evidence of remorse’

Some prisons offer programs where victims can meet the perpetrators of crimes. Evidence of this might be useful to show remorse. In some (rare) cases, prisoners might enter in written correspondence with victims and express remorse in this way.

Evidence of remorse can most obviously be set out in a statement from the client, and corroborated by other family members, but it is likely to carry limited weight (‘well he would say that, wouldn’t he’). Ideally, it should be third party evidence, and as objective as possible.

‘Evidence of reform’

Letters from wing officers, or other staff within the prison (a few clients have been able to provide letters of support from the Governor), can often be useful to show that an individual has been making efforts to reform whilst in prison, as can certificates from educational courses attended.

Given the cuts endured by the prison service and the resulting additional ‘bang-up time’ (where prisoners are restricted to their cells, in many instances for 23 hours per day), you may have clients who have struggled to attend any classes at all. If this is the case, then prison staff should confirm this if at all possible.

If there were particular drivers behind the commission of the offence (e.g. debt, substance abuse, anger management issues), then evidence of courses which deal with specifically with these issues will be important to obtain. Evidence that your client has attended courses on dealing with alcohol abuse where he or she does not have any such documented issues is unlikely to add significantly to the case.

It is sometimes possible to get a letter from the person who ran a course attended by your client – sometimes an outside body, or charity – to confirm progress made etc.

Other factors

There are three other important factor, but these are usually points for the advocate to worry about rather than the evidence gatherer.

Delay

Where we talk about delay here, we mean either between the criminal offending and the decision, or between the making of the decision to deport and the implementation of that decision (for example, in a revocation case). In both cases, the strength of the Secretary of State’s claim to be acting in the public interest steadily weakens over time.

This will not apply, or course, if your client has done a runner. In terms of evidence gathering then, you should make sure there is evidence before the judge that your client has been living where he said he has been living, and/or reporting as required at regular intervals to the relevant authorities (either Home Office or Probation).

Evidence of reform and rehabilitation during the period of delay (see above), will be especially important in these cases.

Positive contribution to society

This is unlikely to swing the appeal, but you never know. Evidence of this will normally have been gathered through the process outlined to this point, but worth asking your client if there is anything outstanding which has not been covered.

Residence since childhood

If your client has been in the UK since he or she was very young, then this should be clear from the evidence gathering procedure covered above. If it is not, and your client falls into this category, urgent efforts should be made to establish your client’s year of arrival and residence since then.

This post is an extract from the Free Movement training course Deportation of non EU and EU nationals, available to Free Movement members only.

 

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