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

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 five 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 recent history

Section 32(5) of the UK Borders Act 2007 mandates that, unless certain circumstances apply, the Home Secretary must make a deportation order against a ‘foreign criminal’, defined in the same Act as a person who has been convicted of an offence and sentenced to 12 months imprisonment as a result.

The exception most commonly relied upon is that contained in s.33(2)(a): that removal of the individual would breach his or her rights under the European Convention on Human Rights, and in particular the right to family and private life under Article 8.

In the old days, these individual private or family life rights would be weighed against the public interest in deporting foreign criminals by the application of a five-stage test set out in the case of R (Razgar) v SSHD [2004] UKHL 27, normally by a judge or panel of judges at the tribunal. Case law permitted inclusion of a wide variety of factors which could weigh for – or against – an individual’s family or private life rights under Article 8. As varied, in fact, as life itself.

That immigrants who had committed crimes not only had the right to appeal against a decision to deport them, but would occasionally win, caused – and continues to cause – significant ire in certain corners of the British print media. As a result, perhaps, the deportation of foreign criminals became something of a cause celebre for then Home Secretary Theresa May.

The point made by the government was that, when balancing the rights of the individual to his or her family or private life under Article 8 against the public interest in deportation, too little weight was accorded to that public interest, and too much weight given to the unwieldy and nebulous rights guaranteed under Article 8 (you may remember mention by Theresa May of a cat, ownership of which was said to have strengthened a ‘private life’ claim).

Notwithstanding the relatively low success rates in appeals (averaging out at around 30% for the years 2007-2015), and the lengths that appellants would need to go to succeed before the tribunals, the Secretary of State took her first tentative steps to limit the extent of rights guaranteed under Article 8 with the introduction of a raft of changes to the immigration rules, coming into effect on 9 July 2012.

The July 2012 deportation rules

Until paragraphs 398, 399 and 399A were introduced into the Immigration Rules, the protection afforded by Article 8 to foreign criminals facing deportation was governed entirely by case law. These new rules attempted to define exactly what qualities a family or private life would need to have in order to outweigh the public interest in deportation.

These rules essentially put foreign criminals into three categories:

  1. Those sentenced to 4+ years in prison;
  2. Those sentenced to 1-4 years in prison; and
  3. Individuals who had not necessarily been sentenced to time in prison, but
    1. whose offending had caused serious harm; or
    2. was a persistent offender and showed a particular disregard for the law

The rules then define in what circumstances a person’s individual rights will outweigh the public interest in their deportation, but only for those sentenced to less than 4 years in prison (categories B & C). We will consider those with sentences of more than 4 years below.

The sprawling case law on Article 8 was essentially crammed into three exceptions: two relating to ‘family’ life, and one to ‘private’ life. For those sentenced to less than 4 years imprisonment, the public interest in deportation would be outweighed if an individual had:

  • a parental relationship with a British child (or a child who has been in the UK for 7+ years), and it would be ‘unduly harsh’ for that child to travel with the deported parent, AND it would be unduly harsh to leave the child in the UK without the deportee;
  • a relationship with a British or settled person (someone with Indefinite Leave to Remain), and it would be unduly harsh for the partner to travel with the deported partner, AND it would be unduly harsh for the partner to remain in the UK without the deportee; or
  • been in the UK for most of their lives, are socially and culturally integrated in the country, AND would face very significant obstacles to integration on return.

Those sentenced to over 4 years imprisonment, however, would have to show that there existed ‘very compelling circumstances over and above’ those set out in the three scenarios outlined above.

Part 5A Nationality Immigration Asylum Act 2002

While the courts accepted that the rules emphasised executive intention, given their introduction via the Immigration Rules rather than primary legislation they found that this did not represent a substantial change in the law.

In a string of cases, beginning with MF (Nigeria) v SSHD [2013] EWCA Civ 1192 and ending late last year in the Supreme Court with the joined cases of Hesham Ali [2016] UKSC 60 and Makhlouf [2016] UKSC 59, the courts found that decision-makers would still be required, in the event that a foreign criminal could not fit within the prescribed exceptions, to assess whether a decision was proportionate in order to reach an Article 8 compliant decision.

Anticipating some time before judgment in Hesham Ali and Makhlouf that the writing was on the wall, the Secretary of State introduced substantially the same provisions as those contained within the rules into primary legislation on 28 July 2014 via the Immigration Act 2014.

This elevated the provisions previously contained in the Immigration Rules – a statement of executive policy – to the law of the land. The rules relevant to deportation cases to which all tribunals must ‘have regard’ when deciding appeals against deportation are found at Part 5A Nationality Immigration and Asylum Act 2002 (as amended):

117A. Application of this Part

(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –

(a) breaches a person’s right to respect for private and family life under Article 8, and

(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.

(2) In considering the public interest question, the court or tribunal must (in particular) have regard –

(a) in all cases, to the considerations listed in section 117B, and

(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.

(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).

117C. 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.

The Act targets the same three categories of foreign criminal (dependent on length of sentence) as previously identified in the Immigration Rules and set out above.

The commencement of these provisions marked a further shift from the ‘free-wheeling Article 8 analysis’ deprecated in Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC), towards a more rigid statutory test, entirely governed by the consideration of the content of the s.117A-D as set out above.

The question of exactly how much of a shift has been the subject of mind-bending argument over the past few years.

McCloskey J, President of the Upper Tribunal’s Immigration and Asylum Chamber, referred to the regime introduced by Part 5A of the 2002 Act as ‘novel and challenging’, but which should be ‘construed and applied in a manner which makes it sensible, intelligible and workable’ (see Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test) [2017] UKUT 13 [44, 46].

The fact that a judge has to make this comment does rather suggests that Part 5A lacks some of those qualities. Indeed, as the President conceded in Treebhawon, ‘its structure and contents are, in certain respects, not altogether clear….’

Fitting within an exception

The statutory scheme acknowledges that, in two sets of circumstances, a decision to deport will be in breach of an individual’s rights under Article 8 ECHR. These circumstances are known as Exception 1, which protects those who have been in the UK for significant periods of time, and Exception 2, which protects established relationships with a partner, or a child.

Exception 1

In order to fit within this exception, the foreign criminal must:

  1. have been lawfully resident in the UK for most of his life,
  2. be socially and culturally integrated in the UK; and
  3. show that there would be very significant obstacles to his or her integration into the country to which they would be deported

One would have thought that limbs 1 and 2 would stand and fall together: if someone is resident in a country for most of their life, they will presumably be socially and culturally integrated in that country.

However, as an example of the subjectivity inherent in making these assessments, the Upper Tribunal in Akinyemi v SSHD [2017] EWCA Civ 236  held that a man born in the UK in 1983 and who had never left was not ‘socially and culturally integrated’ having regard to his offending history and his lack of financial independence, and perhaps because the judge had not seen the appellant at any dinner parties recently.

The finding was gently criticised by the Court of Appeal, who suggested (as they allowed the appeal for other reasons) that the man in question was ‘in one sense fully integrated in society, however anti-social his behaviour’ [28].

The meaning of the third limb was considered in SSHD v Kamara [2016] EWCA Civ 813, where the Court of Appeal held that ‘integration’ in this context is a broad concept [14]:

It is not confined to the mere ability to find a job or to sustain life while living in the other country. It is not appropriate to treat the statutory language as subject to some gloss and it will usually be sufficient for a Court or Tribunal simply to direct itself in the terms that Parliament has chosen to use. The idea of ‘integration’ calls for a broad evaluative judgment to be made as to whether the individual will be enough of an insider in terms of understanding how life in the society in that other country is carried on and a capacity to participate in it, so as to have a reasonable opportunity to be accepted there, to be able to operate on a day to day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to the individual’s private or family life.

In Treebhawon the court considered what was meant by the other aspect of the test, ‘very significant obstacles’ finding at [37] that it erected

a self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient in this context.

Exception 2

In order to satisfy this exception the foreign criminal must show a subsisting relationship with either their partner or child, and that the effect deportation on either one would be ‘unduly harsh’.

The case of MAB (para 399; “unduly harsh”) USA [2015] UKUT 00435 (IAC) considered the meaning of this term, drawing on McCloskey J in BM and Others (returnees – criminal and non-criminal) DRC CG [2015] UKUT 293 (IAC) [109]:

Whether the consequences of deportation will be “unduly harsh” for an individual involves more than “uncomfortable, inconvenient, undesirable, unwelcome or merely difficult and challenging” consequences and imposes a considerably more elevated or higher threshold. The consequences for an individual will be “harsh” if they are “severe” or “bleak” and they will be “unduly” so if they are ‘inordinately’ or ‘excessively’ harsh taking into account of all the circumstances of the individual.

So, foreign criminals should be looking to demonstrate that the circumstances for their child or partner in the event of their departure would be excessively bleak. Regular bleakness will be insufficient.

‘Very compelling circumstances’

For individuals who do not fall within these exceptions, there is a (as yet unresolved) legal argument about the way in which the court must approach the ‘very compelling circumstances’ test set out in s.117C(6).

In NE-A (Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 (11 April 2017) the court disagreed that the tribunal was still required to undertake a proportionality assessment, preferring instead the analysis of Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803 at paragraph 50:

Parliament has actually specified what the outcome should be of a structured consideration of Article 8 in relation to foreign criminals as set out in section 117C, namely that under the conditions identified there the public interest requires deportation. The ‘very compelling circumstances’ test in section 117C(3) and (6) provides a safety valve, with an appropriately high threshold of application, for those exceptional cases involving foreign criminals in which the private and family life considerations are so strong that it would be disproportionate and in violation of Article 8 to remove them. If, after working through the decision-making framework in section 117C, a court or tribunal concludes that it is a case in which section 117C(3) or (6) says that the public interest ‘requires’ deportation, it is not open to the court or tribunal to deny this and to hold that the public interest does not require deportation.

The same court did not find any contradiction with the findings of a differently constituted Court of Appeal in Akinyemi which appears to take a slightly different view at paragraph 14:

…there was some discussion before us as to the correct construction of section 117C (6). At first sight a possible reading of the phrase “over and above those described in Exceptions 1 and 2” is that the foreign criminal is obliged to show, first, that he fell within the terms of one or other (or possibly even both) of the exceptions, and then to demonstrate, additionally, “very compelling circumstances”.

But Mr Drabble submitted that this was an over-literal approach and that the thrust of the provisions as a whole was that the very compelling circumstances which the criminal must show must be more compelling than those covered by the specified exceptions. No doubt in the paradigm case falling within sub-section (6) one or other of the exceptions would be satisfied, but that might not always be so, and a more flexible approach was preferable so as to avoid a mismatch between the approach adopted under the legislation and that required by article 8.

He also pointed out that the issue was not in any event of substantial importance since section 117A only requires the decision-taker to “have regard to” the considerations in sections 117B and 117C, so that even if the stricter construction of sub-section (6) were adopted the Respondent would not be compelled to act in breach of article 8 (contrary to section 33 of the 2007 Act) if that is what deportation would entail in any given case…In my view the better approach is to adopt the more flexible construction advanced by Mr Drabble.

Underhill LJ giving lead judgment in Akinyemi added at paragraph 45:

the obligation under section 117A is only to “have regard to” the considerations enumerated in sections 117B and 117C and cannot trump the obligation to give effect to Convention rights

Whatever the niceties of the approach, a balance sheet exercise of the sort that used to take place in Razgar still occurs, albeit in the shadow of s.117C(6), where consideration is given to the question of whether or not there exist ‘very compelling circumstances’ to outweigh the public interest in deportation.

In terms of the meaning of the phrase itself, McCloskey J mused in Treebhawon ‘whether the adverb ‘very’ in truth adds anything to the adjective ‘compelling’, given that the latter partakes of an absolute flavour’ [47].

The bottom line is that, in order to succeed, a deportation case must be very strong indeed.

Factors to be considered

As very recently confirmed by the Supreme Court in R (Kiarie and Byndloss) v SSHD [2017] UKSC 42 (14 June 2017) the factors to be considered within the assessment of whether there are ‘very compelling circumstances’ include, but are not limited to [55]:

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

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

(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;

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

(e)       the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,

(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

It is unlikely that some of these factors considered individually (e.g. risk of reoffending), could ever constitute ‘very compelling circumstances’, which arguably suggests that the Supreme Court continues to advocate a holistic approach to the question posed, and in a similar fashion to the proportionality exercise carried out prior to the introduction of the rules or statutory considerations.

‘Very compelling’ examples

The following are reported cases where the courts have considered certain sets of circumstances advanced by appellants, who argued that they were ‘very compelling’:

  • SSHD v JZ (Zambia) [2016] EWCA Civ 116 (01 March 2016): 4 ½ year sentence, no ‘near miss’ principle ‘but would be bizarre for SSHD to ignore such matters’ (i.e. the fact that the appellant almost fell under the 4 year upper limit) [29], that the appellant had only once been to the country of his birth and would face difficulties integrating there, was only 17 at the time he committed the offence (Maslov even gets a mention), meant there was an ‘aggregation of extremely powerful factors’ (amounting to ‘very compelling circumstances’) meaning that the appeal should succeed [45-46]
  • SSHD v RF (Jamaica) [2017] EWCA Civ 124 (03 March 2017): 4 year sentence, appellant would have fallen within an exception had the sentence been any less (even by a day), this was taken into account (arguably to reduce the weight of the public interest in deportation, although this is not stated explicitly), best interests of the child were front and centre of the decision where there were ‘very compelling circumstances’
  • SSHD v CT (Vietnam) [2016] EWCA Civ 488 (25 May 2016): 7 ½ year sentence, absence of reoffending, and the impact of deportation on CT’s British national children, were enough for both the FTT and UT to find that exceptional circumstances existed. This was overturned, however, by the Court of Appeal, and a perfect example of a case where the facts are compelling enough to satisfy one judge, but not another.
  • Akinyemi v SSHD [2017] EWCA Civ 236 (04 April 2017): incredibly, the fact that Mr. Akinyemi was born in the UK and had never left, did not constitute ‘very compelling circumstances’ for the Upper Tribunal. However, fortunately for him, an error of law in the judge’s determination meant that it has been remitted to the tribunal for a further hearing.
  • SSHD v HM (Uganda) [2017] EWCA Civ 239 (11 April 2017): 9 year sentence, relationship with step-son (who had Asperger’s) and two other children, settled relationship with wife, had ‘turned his life around’ since leaving prison, low risk of reoffending, sole bread winner in the family. This was overturned at the Court of Appeal and remitted back to the tribunal for a fresh decision (for pretty flimsy reasons [41-46]), although there was no argument that these circumstances could not, in principle, pass the ‘very compelling’ test.

(SSHD v HM has a long and convoluted procedural history [31-32] but, interestingly, an appeal made by the same appellant against deportation was dismissed in 2009 where the presiding judge placed great weight on the public interest in deportation, long before the existence of either the 2012 deportation provisions in the Immigration Rules, or the Part 5A equivalent in the 2002 Act, mandated that he do so. The ongoing appeal is against the Home Office decision to refuse to revoke the deportation order).

Deportation test: a summary

Picking our way through this dog’s dinner, it seems that the law is essentially this:

  • Those convicted of a crime and sentenced to over 1-4 years imprisonment will not be deported if they can show they fall into one of the exceptions outlined in s.117C(4) or s.117C(5).
  • Those who are convicted of a crime and sentenced to 4 or more years in prison (or over 1 year and don’t fit within the exceptions) will need to show that there are ‘very compelling circumstances’ in their case to outweigh the public interest in their removal.
  • The matters to be taken into account when considering ‘very compelling circumstances’ are not limited to relationships with partners and children and/or length of residence/integration only, and can include the full spectrum of Article 8 issues that would have previously been considered in the pre-2012 proportionality exercise: see Kiarie [55]; and
  • The public interest in an individual’s removal is not the same in each case, and will vary depending on the seriousness of the offence: s.117C(2). See also SSHD v JZ (Zambia) [29]

The major change that has occurred in recent years is that, once the balance sheet of factors has been drawn up – on the one side, those in favour of the public interest in deportation, appropriately fortified by reference to primary legislation, and on the other, those in favour of the displacement of the public interest by reference to individual rights endowed by Article 8 ECHR – the weight given to the public interest has increased.

While the SSHD hasn’t necessarily succeeded in restricting the issues which can count in favour of an appellant’s Article 8 rights, she has succeeded in raising the bar as to what will outweigh the public interest in deportation.

The way the rules, and now primary legislation, have been drafted, means there now essentially exists a presumption that where an individual has been sentenced to over 12 months imprisonment and cannot fit within an exception, deportation will take place, unless very compelling circumstances can be shown that it should not. This is confirmed succinctly by Rafferty LJ in SSHD v CT (Vietnam) [2016] EWCA Civ 488 [18]:

The starting point in considering exceptional circumstances is not neutral: SS (Nigeria) and MF (Nigeria). Rather, the scales are heavily weighted in favour of deportation and something very compelling is required to swing the outcome in favour of a foreign criminal whom Parliament has said should be deported.

This is an important difference from the ancien regime, where judges arguably approached – or were supposed to approach – the question from a more neutral position, in the form of a proportionality assessment.

‘Clear and predictable’?

In The Rule of Law Tom Bingham argued that ‘the law must be accessible and so far as possible intelligible, clear and predictable’.

What is clear is that it is much harder to successfully challenge a deportation decision today than it was 10, or even 5 years ago.

It is much less clear, however, which cases are likely to succeed. The differences between judges on whether or not a particular set of circumstances is ‘very compelling’ shows that the law in this area is very far from predictable.

The huge scope for subjective assessment when considering these terms, especially the ‘very compelling’ test, but also ‘unduly harsh’, ‘very significant obstacles to integration’ and even ‘socially and culturally integrated’, means that decisions in this area will be – and already are – exposed to significant variety in outcome depending on the constitution of the presiding panel or bench.

With the likely return of deportation appeals to the UK following the hobbling of the government’s ‘deport first appeal later’ policy in Kiarie, advising clients on their prospects of success presents real challenges where judges in the First Tier and Upper tribunals and/or the Court of Appeal may all arrive at separate conclusions about the merits of a case.

Nick Nason

Nick is a lawyer at Edgewater Legal, simplifying immigration law for individuals and businesses.

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