Court of Appeal: The public interest in the deportation of foreign criminals has a flexible or moveable interest rather than fixed quality

It’s the Court of Appeal once again in Akinyemi No. 2 on the  correct approach to public interest considerations in a deportation appeal relating to a foreign national criminal, who having been born here in 1983, never having left the UK, failed to  naturalise as a British citizen. It is in such circumstances, following commission of a large number of offences that he ultimately became subject to deportation proceedings as a Nigerian citizen.  Akinyemi  No. 2 is reflected in the newly notified decision in  Akinyemi v The Secretary of State for the Home Department [2019] EWCA Civ 2098 (04 December 2019)

Considerations in Akinyemi go all the way back to 2017 as considered in a previous blog  post: Court of Appeal considers whether a historic unexercised entitlement to British citizenship is sufficient to resist deportation

In Akinyemi No.1,  Akinyemi v The Secretary of State for the Home Department [2017] EWCA Civ 236 , the Court of Appeal allowed the appeal and  remitted it to the Upper Tribunal for consideration. Akinyemi’s appeal was dismissed by the Upper Tribunal whereupon he appealed once again to the Court of Appeal.

Applicable law

It was observed in Akinyemi No.2 that it was acknowledged in the Upper Tribunal that because the Appellant had been sentenced to a period of imprisonment of at least 4 years, the tribunal had to have regard to the statutory provision in Part 5A of the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) namely, that the public interest required his deportation unless there were very compelling circumstances over and above those described in Exceptions 1 and 2 in Section 117C:

“………………..

(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”.

In relation to these provisions, the Court in Akinyemi. 2, reiterated that the  Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2017] 1 WLR 207  held between paragraphs 25 to 27 that there was an obvious drafting error in section 117C(3). The consequence of that decision is that section 117C(3) is to be read in conjunction with section 117(6), as follows: “the public interest requires C’s deportation unless Exception 1 and 2 applies or unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2”.

The Court further stated that the Upper Tribunal in considering  the appeal had noted that in order for the public interest in deportation to be outweighed there would have to be a “very strong claim indeed” (see, for example: Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 at paragraph 38.

The issues

The following conclusions reached by the Upper Tribunal in paragraph 25 of its decision were in particular contention before the Court of Appeal:

  • b. The risk of reoffending is not the only, or even the most important factor, to be taken into account in terms of the public interest…the depth of public concern about the facility for a foreign criminal’s rights under article 8 to preclude his deportation is a significant factor to be taken into account.
  • h. For many years, the appellant has committed serious offences, and continued to commit serious offences and drive unlawfully even when warned of the potential consequences with regard to his immigration status within the UK. While the tribunal noted recent efforts to improve his attitude, it had no doubt that the appellant still presents a significant risk of continuing to offend, and remains a significant risk to the public. It held that the very strong public interest in deportation was manifest.

The appeal before the Court of Appeal raised the following grounds:

  • Firstly, whether the Upper misdirected itself with respect to the public interest in the deportation of foreign criminals;
  • Secondly, whether the Upper Tribunal misdirected itself as to the establishment of very compelling circumstances needed to overcome a deportation order.

It was submitted on behalf of the Appellant that the Upper Tribunal’s treatment of the public interest consideration was fundamentally flawed:

  • As it’s reasoning in the judgment demonstrated, the Upper Tribunal either added the depth of public concern about whether article 8 rights tended to preclude deportation of a foreign national criminal as an additional factor to the public interest or wrongly described it as a significant factor on the facts of the case.  
  • In doing so the Upper Tribunal purported to rely on Lord Wilson’s treatment of that factor in Hesham Ali at [70] where Lord Wilson accepted that “the very fact of public concern about an area of law, subjective though that is, can add to the court’s analysis of where the public interest lies”.
  • The context of the case in Akinyemi, which it was submitted was very different from that being referred to by Lord Wilson, was that the appellant had lived his entire life in the UK. That was materially different from the paradigm foreign criminal who arrives in the UK from another state and then commits crimes: a circumstance where the need for foreign nationals to appreciate the consequence of criminal conduct in terms of expulsion is much more obvious.  
  • The facts in Akinyemi should have led the tribunal to reduce the weight of the public interest in deportation rather than to increase it or describe it as being significant. This flawed view altered the balance struck by the tribunal and also its assessment of the consequences of deportation: this would not be a return to a home state for the appellant but “an exile from the only country the appellant can call home”.

Public Interest: Flexible or moveablerather than fixed quality

The Court of Appeal concluded as below:

  • The correct approach to be taken to the ‘public interest’ in the balance to be undertaken by a tribunal is to recognise that the public interest in the deportation of foreign criminals has a moveable rather than fixed quality.
  • It is necessary to approach the public interest flexibly, recognising that there will be cases where the person’s circumstances in the individual case reduce the legitimate and strong public interest in removal. The number of these cases will necessarily be very few i.e. they will be exceptional having regard to the legislation and the Rules. Akinyemi’s case was such a case.
  • Given  the Court’s conclusion in this regards, it was considered not necessary to deal in detail with ground two.
  • Akinyemi’s appeal was allowed and outstanding issues were remitted to be heard by the Upper Tribunal with a different constitution.

Conclusion

The Court of Appeal in Akinyemi No. 2  concluded its judgement by re-iterating the words of Sales LJ in Kamara v Secretary of Sate for the Home Department [2016] EWCA Civ 813, [2016]4 WLR 152 at [14] so that they might be heeded by other decision makers:

“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.”

The facts of the case in Akinyemi are unusual: this Appellant had missed out years ago naturalising as a British citizen despite having been born here in 1983 and never having left the UK.

The judgement is however a  welcome decision: situations where the strength of the public interest can be affected by factors in an  individual case, thus reducing the legitimate and strong public interest in removal although considered by the Court of Appeal to be likely  “very few”,  will see a lot more deportation appeals seeking to establish that their particular circumstances too are exceptional.

The issues arising in Akinyemi No.2  clearly require the Upper Tribunal, in a suitable case, to delve into the issues and set out guidance in a lot more detail than the Court of Appeal has done. For example, in relation to what other types of cases should the Tribunal be approaching the public interest flexibly?

Akinyemi, coming at the stage it has, where the Frist Tier Tribunal and Upper Tribunal are still grappling with  “new” Rules, statutory provisions and caselaw on deportation appeals, is likely to spawn more litigation rather than a settlement of established principles in this area.