Charter flight to Zimbabwe: how a potential deportee obtained a stay of removal

Alarmingly, enforced deportations to Zimbabwe by charter flight are fast becoming a regular occurrence.

The last such flights to Zimbabwe followed one after the other, in July and August 2021.

Another charter flight is expected to be enroute to Zimbabwe on 2^nd March 2022.

2 March 2022 marks a day where:

• several British children will be ripped apart from a parent
• emotional bonds will be broken, some forever
• wives and partners will abruptly find themselves raising young children as sole parents

individuals who have lived here for 20 or more years will be herded onto a plane and dumped at the airport in Harare, without jobs, no means to fend for themselves and facing possible destitution in an impoverished country that is plagued by severe economic challenges coupled with incessant political conflict.

Common questions usually asked at times such as these, include:

• why is a person with British children and a partner being deported, surely he should be allowed to stay in the UK?
• why deport a person who has lived in the UK for more than 20years years?

The answer lies in ascertaining provisions of the law that apply to persons who fall to be defined as “foreign criminals”.  Such persons fall for consideration under harsh Immigration Rules subject to a high threshold. This has the result that some human rights claims placing reliance on a family life with British children and partners, may at times fail before the Home Office, the Tribunal and higher courts. The consequence is that an affected person may be deported leaving young British children behind in the UK.

“Foreign criminals” and deportation

In relation to automatic deportation, Section 32(5) of the UK Borders Act 2007 provides that the Secretary of State must make a deportation order in respect of a foreign criminal (subject to the exceptions in section 33).

Section 32 defines a “foreign criminal” as a person:

• who is not a British citizen or an Irish citizen
• who is convicted in the United Kingdom of an offence, and
• to whom Condition 1 or 2 applies.

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

Condition 2 is that:

• the offence is specified by order of the Secretary of State under relevant provisions and
• the person is sentenced to a period of imprisonment.

Section 33 of the 2007 Act provides the exceptions to automatic deportation. Most commonly, reliance is placed on Exception 1 where a person argues his removal in pursuance of the deportation order would breach his:

• ECHR Convention rights, or
• the United Kingdom’s obligations under the Refugee Convention.

Where a person referred for deportation consideration does not meet the criteria for deportation under the 2007 Act, consideration is given to whether deportation should be pursued under the 1971 Act on the ground it is conducive to the public good.

Section 3(5) of the Immigration Act 1971 provides for the Secretary of State to make a deportation order on the basis their deportation is conducive to the public good. This gives the Secretary of State discretion to act in a way that reflects the public interest.

Part 5 of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts:

• breaches a person’s right to respect for private and family life under Article 8, and
• as a result, would be unlawful under section 6 of the Human Rights Act 1998.

For these purposes, foreign criminal is defined at Section 117D of the 2002 Act:

A “foreign criminal” means a person—

• who is not a British citizen,
• who has been convicted in the United Kingdom of an offence, and

who:

• has been sentenced to a period of imprisonment of at least 12 months,
• has been convicted of an offence that has caused serious harm, or
• is a persistent offender

Section 117(C)of the Nationality, Immigration and Asylum Act 2002, states that the deportation of foreign criminals is in the public interest. The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.

The exceptions to deportation and the very compelling circumstances test

Where a person claims that their deportation would be contrary to the UK’s obligations under Article 8 of the Human Rights Convention, they may seek to resist deportation on the basis that they meet the family life exceptions to deportation, ie – place reliance upon a family life with a qualifying child and/or reliance on a qualifying partner.

Paragraph 398 of the Immigration Rules sets out the criminality thresholds. An Article 8 claim from a foreign criminal who has not been sentenced to at least 4 years’ imprisonment will succeed if the requirements of an exception to deportation are met. The exceptions to deportation on the basis of family life are set out at Paragraph 399 of the Immigration Rules, and the exception on the basis of private life is at Paragraph 399A.

Paragraphs 398 to 399A of the Immigration Rules set out when a foreign criminal’s private and/or family life will outweigh the public interest in deporting them.

Family life exception to deportation- family life with a qualifying child:

Paragraph 399 (a) of the Immigration Rules applies if:

The person has a genuine and subsisting parental relationship with a child under the age of 18 years who is in the UK and:

(i) the child is a British Citizen; or

(ii) the child has lived in the UK continuously for at least the 7 years immediately preceding the date of the immigration decision; and in either case:

• it would be unduly harsh for the child to live in the country to which the person is to be deported; and
• it would be unduly harsh for the child to remain in the UK without the person who is to be deported

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions however not in as much detail as the above Immigration Rule.

Family life exception to deportation – family life with a qualifying partner:

Paragraph 399(b) applies if the person has a genuine and subsisting relationship with a partner who is in the UK and is a British Citizen or settled in the UK, and

• the relationship was formed at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious; and
• it would be unduly harsh for that partner to live in the country to which the person is to be deported, because of compelling circumstances over and above those described in paragraph EX.2. of Appendix FM; and
• it would be unduly harsh for that partner to remain in the UK without the person who is to be deported.

Section 117C(5) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions however not in as much detail as the  above Immigration Rule.

Private life exception to deportation:

A person can resist deportation on the basis that Paragraph 399A of the Immigration Rules applies to their case.

Paragraph 399Aapplies if:

• the person has been lawfully resident in the UK for most of his life; and
• he is socially and culturally integrated in the UK; and
• there would be very significant obstacles to his integration into the country to which it is proposed he is deported.

Section 117C(4) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions.

Very compelling circumstances:

An Article 8 claim from a foreign criminal who has been sentenced to at least 4 years’ imprisonment will only succeed where there are very compelling circumstances over and above the circumstances described in the exceptions to deportation at paragraphs 399 and 399A.

Paragraph 398 provides that in such circumstances, the public interest in deportation will only be outweighed by other factors where there are very compelling circumstances over and above those described in paragraphs 399 and 399A.

Section 117C(6) of the Nationality, Immigration and Asylum Act 2002, as amended by the Immigration Act 2014, contains similar provisions.

Why some claims submitted by “foreign criminals” fail:

At first glance, the above provisions seem fairly “easy” to satisfy however they have generated much caselaw in the Upper Tribunal and higher courts in seeking to interpret, for example, what is meant by:

• unduly harsh
• very significant obstacles to integration
• very compelling circumstances

Where the Home office, the Tribunal or higher courts conclude on the facts of a case and by reference to the evidence provided that the threshold in the unduly harsh test or very compelling circumstances test is not met, a claim based on private and family life provisions may ultimately fail, leading to a person’s deportation.

A “standardised” Home Office refusal decision in relation to human rights claims raised by foreign criminals usually raises the following as a basis of refusal:

• the applicant has not demonstrated that he has a genuine and subsisting relationship with his child.
• the applicant has not met the requirements of the exception to deportation on the basis of family life with a child in accordance with paragraph 399(a).
• the applicant is not in a genuine and subsisting relationship with his claimed Partner and it is concluded that he does not meet the requirements of the exception to deportation on the basis of family life with a partner.
• even if the evidence is taken at its highest and it is assumed that the applicant has a genuine and subsisting relationship with his child, it is considered that he has not sufficiently demonstrated that it would be unduly harsh for his child to live in Zimbabwe with him and that it would be unduly harsh for his child to remain in the UK whilst he is returned to Zimbabwe.
• It is acknowledged that the standard of living may be lower in Zimbabwe in comparison to the UK, however, the applicant’s assertion is speculative and does not mean it would be unduly harsh to expect his child to live with him in Zimbabwe.
• The applicant is a Zimbabwean national and as such is accustomed to the lifestyle and culture in Zimbabwe.
• The applicant will be able to support his child and ease his integration to life in Zimbabwe. It is noted that the child is 5 years old, and although he may be accustomed to life in the UK, it is considered that he is at an age where it would be easier for him to adapt to life in Zimbabwe, especially with the support of his parents.
• Alternatively, the applicant’s child can remain in the UK with his mother whilst the applicant is returned to Zimbabwe.
• It is asserted that the applicant’s child will be severely affected if he is separated from his father. It is reasonable to assume that the absence of the applicant would have some effect on the partner and their child, however, this is not sufficient to constitute as unduly harsh. There is no indication that the partner and their child are financially dependant on the applicant, nor is there any evidence to demonstrate that the applicant’s presence is required in the UK to support the partner and their son.
• the difficulty that arises, especially where there is a shift to being a sole parent is acknowledged, however, as the partner is British/ has been granted Indefinite Leave to Remain in the UK she has access to the required additional support available to support single parents, especially single mothers. It is considered that the partner would be able to take care of and support their son whilst the applicant returns to Zimbabwe. The applicant would still be able to maintain contact with his son via modern means of communication and with support from his mother could organise for his son to visit him in Zimbabwe or elsewhere (outside of the UK).
• In relation to the applicant’s established family life with his partner, it remains that the relationship between the applicant and his partner started when the applicant did not have any lawful leave to remain in the UK. As specified in paragraph 399(b)(i) a relationship will only qualify where it is formed ‘at a time when the person (deportee) was in the UK lawfully and their immigration status was not precarious’.
• In relation to the applicant’s private life, it remains that the applicant has not been lawfully resident in the UK for most of his life or even 20 years.
• In addition, it is considered that the applicant has demonstrated a resourceful attitude in the face of adversity in a new country he had no prior knowledge of, therefore he can use this gained knowledge and skills in a country he has spent his formative years in.
• The applicant put forward evidence to show the socio-economic conditions in Zimbabwe, however, he did not provide any substantial evidence or information to demonstrate that he would be destitute upon his return to Zimbabwe as required in the case of MA (Prove Destitution). Whilst it is acknowledged that the applicant may find life challenging upon his return to Zimbabwe due to not having been there for some time and the standard of living not being on the same level as the UK, this does not establish that there would be very significant obstacles to the applicant’s integration in Zimbabwe
• In order to outweigh the public interest in deporting the applicant, he would need to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation. He has provided no such evidence. Therefore, having considered the facts of the applicant’s case, it is not accepted that there are very compelling circumstances which outweigh the public interest in seeing him deported.
• Therefore, for the reasons above it is not accepted that there is a real risk that the applicant’s removal from the United Kingdom would breach Article 8 of the ECHR.

2 March 2022 Removal Directions: Injunction granted by Upper Tribunal Judge against removal to Zimbabwe

The applicant was unexpectedly detained on 22 February 2022 at his family home during an enforcement visit.

Amongst other documents, he was served with a Factual Immigration Summary, removal directions for 2 March 2022 to Zimbabwe and a letter stating: “For the avoidance of doubt, if the Home Office concludes that removal should proceed in your case notwithstanding any further representations, and/or an application for judicial review, your removal from the United Kingdom will only be suspended on the Order or Directions of the Court”.

The applicant formally instructed me on 23 February 2022. On the same day, a request was made to Home Office FNO Leeds to provide the Tribunal decision of 2016 and other key documentation such as the deportation order- the applicant no longer had these documents on being detained.

The Home Office provided the documents on 24 February 2022 in the morning,

In the evening, 24 February 2022, the applicant with my assistance, submitted an application to revoke the deportation order that had been issued a few years ago.  Representations were  prepared and submitted along with supportive documentation including his partner’s statement.

Considered to be a persistent offender, the applicant had fallen subject to deportation proceedings in 2016. His appeal failed in 2016 before the Tribunal.

At the time of detention on 22 February 2022 the applicant however now had a British child with his long-term Zimbabwean partner who holds refugee protection settlement.

The representations of 24 February 2022 put the Secretary of State on notice that where an in- country right of appeal was not provided in the event of a refusal or where removal directions were not deferred/cancelled, an urgent application for judicial review would be commenced.

The 24^th  February 2022 application was refused on Saturday, 26 February 2022 with no right of appeal. The format of the refusal decision followed that as set out above.  Removal was not deferred.  No right of appeal was provided.

On the same day,  Saturday, 26^th February, Counsel was approached to consider the case and prepare grounds of claim. Having considered the provided papers, she promptly identified grounds of claim and advised accordingly.

The judicial review claim was filed in the Upper Tribunal by email just before 5pm on Monday, 28 February 2022.  An urgent application for a stay of the removal of 2 March 2022 was included, with a request to make a decision on the urgent application within a matter of hours.

In the morning of Monday, 1^st March 2022, the Upper Tribunal issued the sealed claim form.  The applicant’s Bundle was served upon the Secretary of State along with the sealed claim form.

A few hours later at noon, 1^st  March 2022, the application for a stay of removal was granted by an Upper Tribunal Judge with the applicant not to be removed to Zimbabwe pending the outcome of the application for judicial review or until further order.

The stay order was emailed to the Secretary of State requesting written confirmation that the removal directions of 2 March 2022 be cancelled.

At 2.38pm on 1^st March 2022, the Home Office sent a letter confirming the removal directions set for 2 March 2022 had been cancelled.

Conclusion

Each case is different.

Cases involving deportation are complex.

Due to the imminent time factors that apply in cases such as these, it is important however to put forward a claim as effectively as possible and not allow valuable time to slip by in cases where it becomes evident that an application for judicial review, with an urgent stay of removal application will need to be made to the Upper Tribunal.

 

Instructed Counsel:

Shivani Jegarajah

Justitia Chambers