European Court of Human Rights condemns Spain for collectively deporting migrants

In ND & NT v Spain, the European Court of Human Rights decided that the expulsion of two sub-Saharan migrants from a set of barriers surrounding the Spanish territory of Melilla breached their rights under Article 4 of Protocol 4 ECHR (prohibition of collective expulsions of aliens) and Article 13 ECHR (right to an effective remedy). Around this time two years ago, I worked on the intervention in this case at the AIRE Centre under Nuala Mole (who has just been named the FT Legal Innovator of the Year) and Markella Papadouli. This just shows how long it takes from the start of the legal process at the European Court…

10th October 2017 By Paul Erdunast

CJEU on registration certificates and exclusion orders: implications for practice

Ovidiu-Mihaita Petrea emigrated from Romania to Greece, ready to build a new life there. However, he made a big mistake: he committed robbery and was sentenced by a Greek criminal court in 2011. Exclusion order and return Article 27 of Directive 2004/38 states that EU member states may limit free movement of EU citizens on grounds of public security, public policy, or public health. Accordingly, the Greek government ordered Mr Petrea’s return to Romania on 30 October 2011. His name was entered into the list of “undesirable aliens” – barring him from entry to Greece until 30 October 2018. Mr Petrea had been informed, in writing and in a language…

5th October 2017 By Paul Erdunast

Hospital orders and deportation

In Secretary of State for the Home Department v KE (Nigeria) [2017] EWCA Civ 382, the Court of Appeal tackled the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on…

4th October 2017 By Nath Gbikpi

What is the law on the deportation of non EU foreign criminals and their human rights?

Deportation proceedings pit the rights of the individual against those of the state, appointed guardian of the public interest. And as very clearly stated in primary legislation, the deportation of foreign criminals is in the public interest. The relevant law in this area is rent through with politics, shifting relentlessly with headlines, changes to rules or legislation, and the latest decisions of the courts. The shifts over the past 5 years have been unremitting. We consider the recent history of deportation law in the UK, the individuals who will be subject to these rules, and the arguments available to those seeking to challenge decisions to deport them. A brief and…

27th July 2017 By Nick Nason

Secretary of State criticised by Court of Appeal for “confused” and “messy” legal analysis in deportation case

The Home Office has been criticised by the Court of Appeal for its “confused” and “messy” legal analysis in the matter of Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407. The Secretary of State sought to apply refugee cessation provisions to a non-refugee deportee; rigidly sticking to its increasingly untenable position throughout the proceedings. The individual – a Zimbabwean national – had never in fact been granted refugee status but was bestowed it on a technicality for the purposes of family re-unification. By the time the Secretary of State had realised her errors, it was too late as far as the Court of Appeal was…

26th June 2017 By Rebecca Carr

Supreme Court rules “deport first, appeal later” is unfair and unlawful

In R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42 the Supreme Court has struck down “deport first, appeal later” certificates for two foreign criminals. The Home Office had made use of new rules in the Immigration Act 2014 which force some appellants to leave the UK before their appeal takes place, meaning that they are not present to give evidence. Of 1,175 cases in which these powers have so far been used, only 72 individuals attempted to pursue an appeal from abroad. None succeeded. The “deport first, appeal later” rules were originally applied only to foreign criminals facing deportation. However, the Immigration Act…

14th June 2017 By Colin Yeo

Home Office messes up deportation of former Malaysian and British Overseas Citizen

Official (rather terse) headnote: The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect. I’ve got some sympathy for the Home Office on this one. The President asserts that it is “incoherent” to describe a British Overseas Citizen as “a British national albeit that he does not have a right of abode” (paragraph 27). That seems to me actually to be an accurate description: a British national but not a British citizen, the two being distinct for various slightly arcane reasons of colonial withdrawal. Other…

7th March 2017 By Colin Yeo

Updated Home Office guidance on criminality in article 8 ECHR cases

Source: Criminality guidance in article 8 ECHR cases – GOV.UK The change log says: Additional sections to reflect the Supreme Court judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] and the European Court of Justice judgement in Ruiz Zambrano (European citizenship) [2011] ECJ C-34/09. On Hesham Ali, as would be expected, the guidance notes that the Supreme Court did not consider the effect of the introduction of statutory considerations. On Zambrano, the guidance refers to the case of CS v UK C-304/14 and then goes on: This means that where a derivative right of residence is established, deportation must be considered under regulation 19(3)(b) and regulation…

1st March 2017 By Colin Yeo

Serial criminal to be deported despite impact on his children

If you attempt to murder someone with a gun, and after release from prison for attempted murder (a sentence of over four years), are caught again with a loaded gun and imprisoned, do not be surprised that only the most exceptional circumstances will save you from deportation. This was all in the context of running a drug-dealing ‘business’. The main point in the Home Office appeal in Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 concerns the Article 8 argument which was rejected. Lady Justice Rafferty stated that the effect on the children of having only one parent subsequently remaining in the UK was not enough to pass…

15th July 2016 By Paul Erdunast

Court of Appeal considers EU deportation, public revulsion and “imperative grounds”

In Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245 (03 December 2015) Moore-Bick LJ, giving the leading judgment, finds that public revulsion is not generally relevant to decisions to deport under EU law. The facts Two cases were linked for the purposes of this judgment. The first case, Straszewski, involved a Polish national aged 29. He had lived int he UK since the age of 11 and acquied permanent residence in 2003 (albeit retrospectively, once that right came into existence in 2006). He pleaded guilty to a charge of unlawful wounding in relation to an incident in 2010 in which he caused serious injuries to the face…

6th January 2016 By Colin Yeo

When might deportation orders be revoked before 10 years is up?

Background The facts of Secretary of State for the Home Department v ZP (India) [2015] EWCA Civ 1197 involved some of the worst breaches of immigration law ever seen in a reported decision: overstaying a visit visa in 2002 then organising and taking part in sham marriages, fleeing abroad in 2003 when detected and being convicted in her absence and then re-entering the UK in a false identity in 2005, obtaining settlement in this false identity in 2007 and then on detection being convicted again for breaches of immigration law and, after serving her sentence, being deported in 2009. Undeterred, the lady concerned applied a few years later for revocation…

14th December 2015 By Colin Yeo

Report: “Serious irreversible harm” test case heard in Court of Appeal

This week, Lord Justices Elias, Richards and McCombe sat in the Court of Appeal and heard the first test cases against Section 94B of the Nationality, Immigration and Asylum Act 2002. Section 94B, introduced by the Immigration Act 2014 and which came into force on 28th July 2014, provides the Home Office the power to certify human rights claims made by people liable to deportation, so they are not entitled to an appeal within the UK. Instead they are expected to bring their appeal from the country in which the Home Office propose deportation. This logic has been catchily titled “deport first, appeal later” and the Conservatives pledged in their manifesto to…

25th September 2015 By Mia Light

Rehabilitation and EU deportation cases

In MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC), Dr Storey, with the assistance of new Upper Tribunal Judge Canavan, turns his attention to the pressing issue of reinterpreting the principles in the cases of Essa, of which there are three, as already reinterpreted by the Court of Appeal in Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145. In the headnote, which at ten paragraphs long is fully 25% of the length of the actual determination (which almost reads as an afterthought) we are instructed thus: 1. Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation…

21st September 2015 By Colin Yeo

The Law and Practice of Expulsion and Exclusion from the United Kingdom

Last night I was invited to the launch for a new practitioner text edited by Eric Fripp, The Law and Practice of Expulsion and Exclusion from the United Kingdom: Deportation, Removal, Exclusion and Deprivation of Citizenship. There were a number of excellent speakers lined up and so I thought I’d take some notes and turn them into a blog post. What follows are my notes on the gist of some of what was said. I may have embellished the actual words a little in the process, so my write up cannot be taken as quotation for the various speakers. I was also very kindly provided with a review copy. I have…

21st January 2015 By Colin Yeo

Damning deportation report

The National Audit Office has published a damning report on the UK’s deportation process today. The numbers of foreign criminals deported have actually declined since 2008-09 despite a tenfold increase in the number of staff dealing with these cases at the Home Office, from below 100 in 2006 to over 900 in 2013-14. What are they doing, one has to ask oneself? It was apparently only in 2012 that the Government started to take preventative measures to prevent foreign criminals entering the UK. Even today the UK remains outside critical European government intelligence networks. The report follows a similar damning indictment in March 2014 of management of detention and deportation…

22nd October 2014 By Colin Yeo

Court of Appeal examines new human rights statute and rules

In the case of YM (Uganda) v Secretary of State for the Home Department [2014] EWCA Civ 1292 the Court of Appeal has examined the effect of the new Immigration Act 2014 human rights statutory considerations and the accompanying changes to the Immigration Rules. The court concludes that the new regime is irrelevant when considering whether an error of law was made but will be relevant where an appeal is being remade if an error of law is found. The case concerned a thirty year old man born in Uganda who had entered the UK aged six. He had committed some violent offences between the ages of 15 and 19 and then…

13th October 2014 By Colin Yeo

More case law on prison and protection against deportation in EU law

Official headnote for MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC): (1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security. (2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG in respect of the meaning of the “enhanced protection” provision. (3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily…

25th September 2014 By Colin Yeo

New Home Office guidance on deportation

The Home Office have updated their Chapter 13 Immigration Directorate Instruction guidance on deportation cases. It makes interesting reading for anyone interested in immigration law or human rights but it is essential reading for lawyers representing people in deportation cases. It not only gives insight into the approach of the Home Office, it also tells us about the evidence that is necessary in deportation cases in order to avoid an appeal where people do meet the stringent rules. It discloses some interesting possible arguments about the scheme of the statutory considerations on human rights and includes some really quite astonishing propositions even by Home Office standards.  

26th August 2014 By Colin Yeo

Irreversible harm

This entry is part 1 of 4 in the series Immigration Act seminar

From 28 July 2014, the commencement of provisions of the Immigration Act 2014 gives the Secretary of State new powers of certification that will oust “in-country” rights of appeal for foreign criminals. She may do so in any case where she thinks removal would be consistent with the Human Rights Act 1998 and in particular where there is no real risk of serious irreversible harm faced by the deportee (section 94B of the amended Nationality Immigration and Asylum Act 2002).

21st August 2014 By Mark Symes

Out of country deportation appeal certificates and existing appeals

From today the Secretary of State has the power to certify deportation appeals so as to permit them only to be brought from abroad. The power is introduced by section 17 of the Immigration Act 2014, amending into the Nationality, Immigration and Asylum Act 2002 a new section 94B. The Home Office has issued new guidance on both non EEA and EEA deportation cases. As expected, the Home Office intends to certify in cases where there is no “real risk of serious irreversible harm.” I will return to the guidance in a separate post on the subject [here]. Existing appeals can be certified under section 94B. The effect is extremely…

28th July 2014 By Colin Yeo

Difference between domestic and EU law on deportation

The luggage carousel of the tribunal’s reporting committee has spewed forth a fresh batch of cases. Two of them concern deportation, one under domestic primary legislation and the other under European Union law. The facts are very different but the cases illustrate well the stark differences between domestic and EU law on deportation.

17th July 2014 By Colin Yeo

Supreme Court: ILR not resurrected by revocation of deportation order

The Supreme Court has allowed the Secretary of State’s appeal against the Court of Appeal judgment in the case of R (on the application of Fitzroy George) v Secretary of State for the Home Department [2014] UKSC 28. The Court of Appeal’s judgment was previously covered here on Free Movement. To summarise the issues involved, I cannot do better than Lord Hughes, who gives the admirably clear single judgment: If a criminal who previously had leave to remain in this country is liable to deportation because of his offences, but cannot actually be deported because to remove him would infringe his rights under the European Convention for the Protection of…

15th May 2014 By Colin Yeo

Criminals deported to DRC are at risk says High Court

In R (on the application of P (DRC) v Secretary of State for the Home Department [2013] EWHC 3879 (Admin), handed down on 9 December 2013, Mr Justice Philips held that P would be at risk of treatment in breach of Article 3 of the ECHR if deported to the Democratic Republic of the Congo. He stated that he reached this conclusion “with considerable regret” [paragraph 54] but was persuaded by the objective material. The risk does not extend to failed asylum seekers for whom the position remains the same as in BK (Failed Asylum Seekers) DRC CG [2007] UKAIT 00098.

10th December 2013 By Abigail Smith

‘Form not substance’: Deport rules do not change the law

Theresa May spent over a year saying her new immigration rules would weaken Article 8 rights for “foreign criminals” but conceded the point within a day at the Court of Appeal. MF (Nigeria) v SSHD [2013] EWCA Civ 1192 makes clear that the Immigration Rules governing deportation now provide a ‘complete code’ for the Article 8 rights of foreign criminals. But they do not change the substantive law relating to Article 8 proportionality assessments and do not create a legal test of exceptionality for succeeding where the Rules are not met.

22nd October 2013 By Omar Shibli

Vasconcelos (risk- rehabilitation) [2013] UKUT 00378 (IAC)

The tribunal isn’t bound by a NOMS risk assessment report when it isn’t high risk. But is bound when it is high risk. Also the tribunal comes down like a tonne of bricks on a claimant’s representative who failed to comply with procedure rules and directions. We are, I think, yet to see any equivalent regarding serial and chronic Home Office failures.

9th August 2013 By Colin Yeo

Are the UK’s mass deportation charter flights lawful?

The London-based research group Corporate Watch has just published a 20-page briefing examining the lawfulness the UK’s mass deportation charter flights. Part of a forthcoming report by Corporate Watch and the campaign group Stop Deportations, it aims to provide campaigners and legal practitioners with some arguments and tools with which to challenge the legality of these flights. This post provides a short summary of the main arguments and findings. The main focus of the briefing is Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), which prohibits the “collective expulsion of aliens.”

29th July 2013 By Shiar Youssef

Operation Nexus

The Met Police website tells us that: Operation Nexus, designed and delivered by the MPS and UKBA, aims to maximise intelligence, information and world wide links to improve how we deal with and respond to foreign nationals breaking the law. AC Rowley, in charge of Specialist Crime and Operations at the Met also states that: Nexus is dealing with those people who we catch offending, but also takes a long term preventative approach by stopping people from returning or being able to arrive in the first place. Last week Friday, Operation Nexus featured on the front page of The Times newspaper (for those with the subscription) as the focus of the…

12th June 2013 By Sarah Pinder

Absence of legal aid may breach fair hearing

A batch of new Upper Tribunal cases have been approved as safe for general consumption by the reporting committee. I posted up three of them yesterday as new short-form ‘link format’ posts with no real commentary, but I wanted to highlight the case of Farquharson (removal – proof of conduct) [2013] UKUT 146 (IAC). This was a human rights deportation appeal and the decision is signed by President Blake, who says: “…it is important that legal representation should be available in such cases. The appellant told us that his reading ability is not great. He was able to read back parts of his statement to us to our satisfaction, but absorbing…

9th April 2013 By Colin Yeo

May be wrong

Theresa May this weekend launched a blistering and unprecedented attack on ‘a minority of judges’, accused them of ignoring the will of Parliament by refusing to deport foreign criminals. Remarkably, she said that: A minority think it is their role to determine whether or not foreigners who commit serious crimes shall be deported. A lawyer’s answer is that this is exactly what judges have been appointed to do and indeed instructed to do by primary legislation passed by Parliament. It is not their role to do as May demands in every single case. This is not North Korea. Back in June 2012 I wrote that: May wants judges always to answer ‘yes’…

18th February 2013 By Free Movement

This instrument is drawn to the special attention of the House on the grounds it may inappropriately achieve its policy objective. House of Lords Secondary Legislation Scrutiny Committee, 6th Report of Session 2012-13, Statement of Changes in Immigration Rules (HC 194) (source)

17th February 2013 By Free Movement

Controversial new human rights rules rejected

The Upper Tribunal has rejected the Government’s attempt exhaustively to define the scope and meaning of Article 8 private and family life in the controversial new immigration rules introduced in July 2012. The case is  MF (Article 8 – new rules) Nigeria [2012] UKUT 00393 (IAC) and the result will be no surprise to any lawyer. In short the tribunal holds that immigration judges must start their determination of a human rights case by deciding the case under the immigration rules, including the rules that purport to define Article 8. If the case does not succeed under the rules the judge must go on and decide the case under what…

31st October 2012 By Colin Yeo

Important new deportation cases

On Tuesday this week the Court of Appeal handed down two important new cases on deportation. The first is Mohan v Secretary of State for the Home Department [2012] EWCA Civ 1363 and concerns the interaction of family and immigration law. The second is R (on the application of George) v Secretary of State for the Home Department [2012] EWCA Civ 1362, which examines the Lazarus-like resurrecting effect of revocation of a deportation order. Mohan broadly endorses the approach towards children family law proceedings adopted by the Upper Tribunal in the twin cases of Nimako-Boateng (residence orders – Anton considered) [2012] UKUT 00216 (IAC) and RS (immigration and family court proceedings) India [2012] UKUT 00218 (IAC). Essentially, where…

26th October 2012 By Colin Yeo

The New Deportation Rules

From 9 July 2012 the UKBA’s new rules on deportation took effect and should be retrospective, paragraph A362 stating ‘Where Article 8 is raised in the context of deportation…the claim under Article 8 will only succeed where the requirements of these rules as at 9 July 2012 are met, regardless of when the notice of intention to deport or the deportation order…was served.’  If then, regardless of when the notice of intention to deport or the deportation order was served, the requirements of these rules have now to be met one wonders why Home Office Presenting Officers and the Secretary of State’s counsel are currently being instructed not to raise…

7th September 2012 By Iain Palmer

How soft is the law on deportation right now?

Not very soft at all. Paragraph 364 of the Immigration Rules, which governs both the UK Border Agency and to a significant extent the immigration tribunal and courts, states that, subject to human rights law (an important proviso), there is a presumption in favour of deportation where the Home Office decides to try and deport someone, it will only be in exceptional cases that deportation is not the right course and, just to make things really clear for those not paying attention at the back, that deportation will normally follow where a person has broken the law: 364. Subject to paragraph 380 [which concerns human rights], while each case will…

10th June 2012 By Free Movement

Deportation game changer

This entry is part 6 of 9 in the series Zambrano series

He said it so sympathetically, it made it all the worse: “This is a fast moving area of law, we understand that, but you might want to take a look at a case we reported last week.”   That was last month now, the speaker was President Mr Justice Blake and the case law ignoramus was me. In my defence, it was only the Tuesday after the case was reported on the Friday. Of all the people to be caught out by not having read and digested a recent case… never mind. The case is Sanade and others (British children – Zambrano – Dereci) [2012] UKUT 00048 (IAC) and it seems to me, now that I…

13th March 2012 By Colin Yeo

The Upper Tribunal, Maslov and the public interest

Further guidance has been reported which is applicable to deportation appeals raising Article 8.   In Masih (deportation – public interest – basic principles) Pakistan [2012] UKUT 00046 (IAC) the official head note reads as follows: The following basic principles can be derived from the present case law concerning the issue of the public interest in relation to the deportation of foreign criminals: (a)       In a case of automatic deportation, full account must be taken of the strong public interest in removing foreign citizens  convicted of serious offences, which lies not only in the prevention of further offences on the part of the individual concerned, but in deterring others from committing them in…

27th February 2012 By Sanaz Saifolahi

Omotunde: a closer look

This entry is part 4 of 9 in the series Zambrano series

UPDATE: correct link added for training notes Omotunde (best interests – Zambrano applied – Razgar) Nigeria [2011] UKUT 00247 (IAC) This case has already been mentioned on the blog but a closer look is warranted as it gives an idea of how the domestic courts are applying the principles in Zambrano in relation to deportation cases, a potentially difficult issue for practitioners and judges alike. This was the subject of one of the recent Renaissance Chambers lectures, and the training notes prepared by myself and Sarah Pinder can be downloaded here if you are interested. Omotunde addresses the deportation of a foreign criminal who had a British Citizen child. The…

11th November 2011 By Samina Iqbal

Detained forever? Foreign prisoners and indefinite detention

Hundreds of foreign national prisoners are being held indefinitely, sometimes for years, when they can’t be removed from the country.  With no time limit on immigration detention powers, judges and the Home Office are operating within what one lawyer described to me as ‘a culture of indeterminate detention.’ It’s a story that is little known outside the usual circles of lawyers and campaigners. Terror suspects held for 28 days won public sympathy, as did those on control orders. But foreign prisoners, it seems, are a difficult cause. The power to detain someone for immigration purposes is, in theory, limited in law. Since 1971, the Government has been able to hold…

7th March 2011 By harrietgrant