The Court of Appeal is clearly at pains to ensure that both tiers of the Tribunal get the law right when considering appeals in relation to foreign national criminals. As acknowledged in the recent case of The Secretary of State for the Home Department v AJ (Zimbabwe)  EWCA Civ 1012, “There has been a plethora of cases which have come to this court concerning the application of article 8 to foreign criminals and in particular seeking to clarify the scope of the residual “exceptional circumstances” concept. The principles of law are well established and not in dispute in these appeals and therefore I will do no more than summarise the effect of the leading authorities”.
Apart from reiterating the relevant principles, the Court of Appeal also emphasized that the general framework of Strasbourg law as established in cases such as Maslov cannot simply be slavishly applied as this fails to view the Article 8 assessment through the lens of the Immigration Rules and will cause Tribunals to go astray, as occurred in AJ (Zimbabwe).
The relevant principles simplified:
The Court of Appeal, as usual, set out the applicable legislative framework and lost no opportunity in reiterating once again the relevant casealw and principles flowing from it:
The relevant Immigration Rules establish a set of criteria which tribunals must apply when assessing the impact of article 8 in criminal deportation cases.
The rules are a complete code. Accordingly, when applying the “exceptional circumstances” criteria, the court should apply the article 8 proportionality test.
Unless the specific exceptions apply, the scales are very heavily weighted in favour of deportation.
There must be “very compelling reasons” to outweigh the public interest in deportation. These compelling reasons constitute the “exceptional circumstances”.
The justification for the courts giving such weight to the public interest in the deportation of foreign criminals is not simply that the Immigration Rules do so, it is that Parliament itself in section 32(5) of the UK Borders Act has stipulated that deportation should be the usual consequence of criminal offending.
“Only a very strong claim indeed” could override the public interest.
When having regard to the public interest in deportation, there are three important facets: the need to deter foreign criminals from committing serious crimes; an expression of society’s revulsion at serious crimes and building public confidence in the treatment of foreign criminals who have committed such crimes; and the risk of re-offending. It is an error to assume that the risk of re-offending is the sole, or even the most important, facet where serious crimes are committed.
It is not enough for a tribunal in its reasons simply to identify a strong public interest in the deportation of foreign criminals; there must be a full recognition of the very powerful weight to be given to that factor and of the need for compelling factors to outweigh it.
The Court of Appeal summarised as follows the relevant principles where children are involved:
It is now firmly established that in any decision affecting children, the best interests of the children must be a primary (but not the paramount) consideration but they can be outweighed by the cumulative effect of other considerations. However, the very strong weight given to the public interest in deporting foreign criminals is not diluted where the rights of children are affected.
The Court of Appeal has on a number of occasions had cause to emphasise that the mere fact that there will be a detrimental effect on the best interests of the children where the parent (almost always the father) is deported in circumstances where the children cannot follow him does not by itself constitute an exceptional circumstance.
Where the person to be deported has been sentenced to 4 years’ imprisonment or more, the weight attached to the public interest in deportation remains very great despite the factors to which Paragraph 399 of the Rules refers.
Neither the British nationality of the Deportee’s children nor their likely separation from their father for a long time is exceptional circumstances which outweigh the public interest in his deportation. Something more is required to weigh in the balance.
It inexorably follows from the statutory scheme that the cases in which circumstances are sufficiently compelling to outweigh the high public interest in deportation will be rare. The commonplace incidents of family life, such as ageing parents in poor health or the natural love between parents and children, will not be sufficient.
The best interests of children certainly carry great weight, nevertheless, it is a consequence of criminal conduct that offenders may be separated from their children for many years, contrary to the best interests of those children. The desirability of children being with both parents is a commonplace of family life. That is not usually a sufficiently compelling circumstance to outweigh the high public interest in deporting foreign criminals.
So what went wrong in the instant appeals?
In summary, the First Tier Tribunal( FTT), on different occasions, allowed deportation appeals in relation to Vietnamese( VH) and Zimbabwean(AJ) nationals. The Upper Tribunal(UT) failed to appreciate that there were errors of law in the First Tier Judge’s decision when considering the Secretary of State’s applications for permission to appeal. The Secretary of State therefore appealed to the Court of Appeal.
In the Court of Appeal’s judgment, the decision in each of the two cases failed to view the concept of “exceptional circumstances” through the lens of the Immigration Rules. Rather the judges applied a stand alone article 8 analysis, recognising that some additional weight should be given to the public interest in deporting foreign criminals, but without an appreciation of the need for compelling factors to overcome the very considerable weight which both the Rules and the primary legislation give to the public interest in deportation.
The FFT’s erroneous reasoning in VH and the Court of Appeal’s view
The appeal arose out of VH having sought to apply for a revocation of a deportation order on the basis of the relationship he had with his partner, with whom he lived, and their son and his step daughter( who was British and a minor). The heart of the judge’s analysis on exceptionality were that, “The best interests of Hanna and Harry are not served by the appellant’s removal because he lives with them and plays an important role in their everyday life such as Hanna taking her to nursey as confirmed by a letter from the nursery. The presence of the appellant has also enabled Ms Vu to take up employment and become less reliant on benefits. Both children would lose the physical presence of the appellant and the benefit of that relationship. Whilst family life could be maintained from Vietnam, it would undoubtedly be severely curtailed by the appellant’s removal. Although visits and other forms of electronic contact could be maintained, such forms of contact are insufficient to adequately maintain family relationships between a parent and very young children. Taking into account the above I am satisfied that there are exceptional circumstances here in that the particular nature of the appellant’s family life is not adequately provided for by the rules. This is a family in which one child is a British Citizen with family connections in the UK through her biological father and yet is living with her mother and half-brother who only have limited leave to remain until 2016. …”
The judge’s conclusion, therefore, was that these constituted “compelling circumstances that outweigh the public interest in removal.
The Court of Appeal’s conclusions were that even after giving all due weight to the relevant considerations, this was one of those cases where the decision of the FTT, and hence of the UT which upheld it, simply could not stand. A later reference to the “significant weight” to be given to the relevant public interest suggested that the full rigour of the test was not appreciated. The FTT did not apply the article 8 proportionality assessment in accordance with the principles laid down in the authorities. It was not open to the FTT to find that the separation of the children from the father/step-father was a compelling reason to allow the respondent to remain. Far from being an exceptional circumstance, this was an everyday situation as the relevant authorities demonstrate. The authorities show that the separating parent and child cannot, without more, be a good reason to outweigh the very powerful public interest in deportation. No doubt the FTT was right to say that these children would unfortunately suffer from the separation but if the concept of exceptional circumstances can apply in such a case, it would undermine the application of the Immigration Rules.
The FTT Judge seemed to have thought that there was something special about the nature of this family’s relationships. It would be odd if a family which included a step-child were to be treated more favourably than a family with two natural children. The fact that there was a step-child with a natural father in the UK was a good reason why the family could not be expected to go to Vietnam, but it did not provide a justification for allowing the appellant to remain in the UK. The judge was not, looking at the concept of exceptional circumstances through the lens of the Immigration Rules but without proper regard to them.
The Court of Appeal upheld the Secretary of State’s appeal and refused to remit the case to the Upper Tribunal and restored the deportation order.
The FFT’s erroneous reasoning in AJ and the Court of Appeal’s view
Following the Secretary of State making a deportation order against AJ following a criminal conviction, he sought to resist deportation on the basis that he had two minor children born out of a customary marriage to a Zimbabwean woman who had been granted refugee status in the UK.
It was noted that in allowing AJ’s appeal, no reference was made to the considerable weight to be given to the pubic interest in deportation, nor to the need for very compelling factors to outweigh it. The Court of Appeal also noted that the FTT had referred to the approach of the Strasbourg Court when dealing with foreign criminals(Uner v The Netherlands 45 EHRR 41, Boultif v Switzerland 33 EHRR 1179; and Maslov v Austria 47 EHRR 496 in which the Court has considered when expulsion of a foreign criminal may be necessary in a democratic society). Specific reference was also made by the FTT to an observation in para.70 of Maslov where the Strasbourg court stated that “the above criteria ultimately are designed to help evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities.”
The FTT identified certain factors relevant to the balancing exercise when applying the “exceptional circumstances” test. It found that both parents cared for the children and that they would be adversely affected if their father were to be deported, particularly given that they were at a stage where their emotional development was very important. The older child in particular had put down roots in the UK where she had lived all her life. The mother could not go to Zimbabwe and therefore if the family was to remain together it had to be living in the UK. As to the offending, the appellant had pleaded guilty and expressed remorse and shame. It was found material by the FTT that AJ had committed no further offences and in the light of various reports, the FTT considered that it was unlikely that he would offend in the same way again. The FTT said in terms that it had given “considerable weight” to these aspects of the public interest.
The FTT concluded that:
“If it were not for the best interests of the two children we would have concluded that the interference to family and private life caused by the deportation would be proportionate. If the Appellant was simply in a relationship with his partner without children we would have found that the interference that will be caused to their relationship, given the insurmountable obstacles to his partner returning to Zimbabwe, would have been proportionate to the legitimate aim of the prevention of disorder or crime given the seriousness of the offending and the public interest in deterring criminality. It is the fact that deporting the Appellant will cause separation of two children from their father, and be against their best interests, that tips the balance ultimately to a finding that deporting this Appellant would cause interference that would be disproportionate to the legitimate aim. … “
The Court of Appeal found that nowhere in the FTT Judge ‘s decision was there a clear recognition of the very powerful weight to be given to the public interest in deporting foreign criminals or the need for compelling factors to outweigh it. Acknowledging that “considerable weight” should be given to certain aspects of the public interest does not suffice. Had the FTT properly understood the force of the public interest in deportation, it could not have concluded that separation from his children, without more, could amount to compelling reasons. The Court of Appeal acknowledged that no doubt there will be some emotional damage to the children, but that is not unusual whenever a parent is deported and the child is unable to live with that parent outside the UK. There was nothing special or unusual in the circumstances here which would justify a conclusion that the interference with article 8 rights was disproportionate.
If the proper legal test had been applied, the only proper answer is that there were no compelling circumstances in this case which could displace the very heavy weight to be given to the public interest in removing foreign criminals.
As in VH, the Court of Appeal refused to remit the appeal in AJ to the Upper Tribunal and upheld the Secretary of State’s appeal and restored the deportation order.
Warning on slavish reliance upon Strasbourg Court Caselaw
The Court of Appeal considered that it was plain that the FTT essentially treated the case in AJ like any other article 8 assessment, recognising the public interest in deportation for sure, but not giving it the prominence required. The reference to Lord Bingham’s analysis in EB (Kosovo), and in particular his observation that it will rarely be appropriate to sever a genuine and subsisting relationship between parent and child without any recognition that this was not a principle which applies in foreign criminal case, strongly suggested that the FTT failed to make its assessment through the lens of the Immigration Rules. So did its reliance on the Strasbourg authorities in this field.
The Court of Appeal stated that although they have some relevance in helping to identify potentially relevant factors, Tribunals will be in error if they apply the principles without recognising that the UK has chosen to put a heavy premium on the removal of foreign criminals. It is for each state to determine what weight to give to the public interest in deporting foreign criminals, and accordingly article 8 assessments may vary from state to state even where the factual circumstances are essentially the same. The general framework of Strasbourg law as established in cases such as Maslov cannot simply be slavishly applied. The premise of that jurisprudence departs from the UK approach in two important respects. First, it does not give the same significant weight to the need for deporting foreign criminals as the UK does; and second, it sees the public interest principally in terms of the potential damage caused by the particular individual re-offending, whereas that is merely an element – and by no means even the most important element – of the relevant public interest as perceived in the UK. Applying the criteria in Maslov without modifying them to take account of the particular way in which the UK views the public interest, fails to view the article 8 assessment through the lens of the Immigration Rules and will cause tribunals to go astray, as in this case.
The Court of Appeal’s approach upon review of the relevant authorities
The Court stated that the relevant authorities show that it will be rare for the best interests of the children to outweigh the strong public interest in deporting foreign criminals. Something more than a lengthy separation from a parent is required, even though such separation is detrimental to the child’s best interests. That is commonplace and not a compelling circumstance. Neither is it looking at the concept of exceptional circumstances through the lens of the Immigration Rules. It would undermine the specific exceptions in the Rules if the interests of the children in maintaining a close and immediate relationship with the deported parent were as a matter of course to trump the strong public interest in deportation. Rule 399(a) identifies the particular circumstances where it is accepted that the interests of the child will outweigh the public interest in deportation. The conditions are onerous and will only rarely arise. In many, if not most, cases where this exception is potentially engaged there will be the normal relationship of love and affection between parent and child and it is virtually always in the best interests of the child for that relationship to continue. If that were enough to render deportation a disproportionate interference with family life, it would drain the rule of any practical significance. It would mean that deportation would constitute a disproportionate interference with private life in the ordinary run of cases where children are adversely affected and the carefully framed conditions in rule 399(a) would be largely otiose. In order to establish a very compelling justification overriding the high public interest in deportation, there must be some additional feature or features affecting the nature or quality of the relationship which take the case out of the ordinary( paragraph 17).