Neither the British nationality of the Deportee’s children nor their likely lengthy separation from him outweighed the public interest in his deportation.
The appeal concerned a Vietnamese national (CT), who had been living in the UK since 1991. Although he had minor British children in the UK, he had previously, in 1997 been convicted of attempted murder and possession of a firearm with intent to endanger life. He was sentenced to 7years and 4months imprisonment concurrently.
In 2009, following the birth of his children, he was convicted of a 2006 conspiracy to cultivate cannabis, conspiracy to supply cannabis, possession of a firearm when prohibited and possession of ammunition without a certificate. He was sentenced to 4years for the cannabis offences and 7years 6months imprisonment concurrently for the firearms offences. He thereafter became subject to deportation proceedings. The appeal came up before the Court of Appeal after CT’s appeal had been allowed in the Tribunal. The First Tier Tribunal had concluded that there was ample evidence of the deleterious effect on the children of CT’s removal, coupled with a low risk of reoffending that tipped the balance in his favour.
The Court of Appeal stated that the starting point in considering exceptional circumstances was not neutral: SS (Nigeria) v Secretary of State for the Home Department  EWCA Civ 550,  1 WLR 998 and MF (Nigeria) v SSHD  EWCA Civ 1192;  1 WLR 544. 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. The best interests of the child, always a primary consideration, are not sole or paramount but to be balanced against other factors, in this case that only the strongest Article 8 claims will outweigh the public interest in deporting someone sentenced to at least four years’ imprisonment. It will almost always be proportionate to deport, even taking into account as a primary consideration the best interests of a child.
The Court of Appeal considered that whilst the First Tier Tribunal had reminded itself of the legitimate public interest in the removal of foreign criminals as a deterrence and an expression of condemnation, and that only in exceptional circumstances will that public interest be outweighed by other factors, did not go on to direct itself as to the very great weight to be given to that public interest, the scales heavily weighted in favour of deportation and something very compelling required to swing the outcome in favour of a foreign criminal.
The Court stated that the effect on the children was, on the evidence, to leave them unhappy at the prospect of their father being on another continent but could not accept the conclusion that, added to a low risk of reoffending, the effect on them tipped the balance. It was considered that the children would not be bereft of both loving parents. Nor was there evidence of a striking condition in either of the children which CT’s presence in the UK would dispositively resolve.
The Court also refused to accept that CT had rebutted the presumption that he posed a danger to the public. In the context of such serious offending there were lessons plainly not learned between prison sentences.
The Court of Appeal considered that appellate guidance was clearer now than when the First Tier Tribunal promulgated its decision. Reference was made to paragraph 24 of LC (China)  EWCA Civ 1310 which was stated to succinctly explain, where the person to be deported has been sentenced to 4 years’ imprisonment or more, the weight attached to the public interest in deportation remained very great despite the factors to which paragraph 399 refers. Neither the British nationality of CT’s children nor their likely separation from their father for a long time were exceptional circumstances which outweighed the public interest in his deportation. Something more was required to weigh in the balance and nothing of substance was offered. The approach of both the First Tier Tribunal and the Upper Tribunal had failed to give effect to the clearly expressed Parliamentary intention.
Home Office loses opportunity to deport foreign national criminal due to inordinate delay
The case KD (Jamaica) v Secretary of State for the Home Department  EWCA Civ 418 proceeded along the following basis:
The issue in the appeal was whether the series of delays and administrative errors by Home Office officials had led to a situation in which deportation was no longer permissible.
A Jamaican national, KD, had been convicted of several criminal offences between 2003 and 2008. In 2007, the Secretary of State signed a deportation order against him, however this was never conveyed to him by reason of administrative errors. In 2008, KD submitted a leave to remain application, which however unknown to him was treated as an application to revoke a deportation order. The refusal decision of 2012, to revoke the deportation order never reached KD and he only became aware of the deportation process when he was detained in 2012.
Following several appeal proceedings, upon the case coming up before the Court of Appeal, that Court held that the First-tier Tribunal and the Upper Tribunal had made findings of fact which brought the case into the “exceptional” category. It was now 13 years since KD’s conviction for a serious offence. The Secretary of State delayed inordinately in taking any effectively steps to deport him. KD put that period of respite to good use. On the findings of fact made by both tribunals he engaged in rehabilitation programmes and achieved rehabilitation. He established a family of which he was a crucial member. He built up such firm relations with his three children that deportation of the father would be devastating for the family. That was obviously material in relation to section 55 of the 2009 Act as well as ECHR article 8. In the Court’s view, the Upper Tribunal had made findings of fact which constituted exceptional circumstances. In a series of passages the Upper Tribunal Judge fully recognised and took into account the high public importance of deporting foreign criminals.
Turning to the case of MF (Nigeria) v SSHD  EWCA Civ 1192;  1 WLR 544, the Court in KD stated that the test of “exceptional circumstances” according to paragraph 43 of MF(Nigeria) meant that very compelling reasons were required in order to outweigh the public interest in deporting Mr Dennis. It was considered that in the present case, both the First-tier Tribunal and the Upper Tribunal had found very compelling reasons to outweigh the high public interest in deporting KD.
Appropriate weight is to be attached to public interest deportation considerations regardless of 40 years lawful residence in the UK
In Secretary of State for the Home Department v LW (Jamaica)  EWCA Civ 369, the following considerations came into play:
The issue in the appeal, was the important policy question as to the public interest in the deportation of foreign criminals, applied in the context of an individual who, although guilty of serious criminal conduct, had lawfully resided in the UK for over 40 years.
The Appellant, a Jamaican national, had arrived in the UK in 1973 and was granted indefinite leave to remain the same year and lived in the UK lawfully ever since.
Between December 1976 and November 2011, he amassed in the UK, 21 convictions for a total of 35 offences.
Following commencement of deportation proceedings, the First Tier Tribunal allowed his appeal on the basis that they found it exceptional to deport a 56year old person who had been resident in the UK for 40years, who has strong family ties, no family ties to Jamaica and was in effect a “ home grown offender”. When the Secretary of State appealed the decision, the Upper Tribunal upheld the decision allowing the Appellant’s claim. The Secretary of State appealed to the Court of Appeal.
At paragraph 14 of their judgment, the Court Appeal sought to “ pull the threads together” in relation to the principles applicable in deportation appeals.
The new rules provide a comprehensive code;
The context is the great weight to be attached to the public interest in the deportation of foreign criminals;
That public interest and related questions of public confidence reflect (1) protection of the public from re-offending; (2) deterrence; (3) public revulsion;
The considerations in a deportation case are thus very different from those applicable to cases of immigration control;
A proportionality test, taking all the relevant Art 8 criteria into account and weighed in the scales against the public interest in deportation, is to be conducted – but through the lens of the new rules, rather than as a free-standing exercise;
In the case of a person sentenced to at least 4 years imprisonment, paragraph 398(a) applies and neither paragraph 399 nor 399A is applicable; accordingly, it will only be in “exceptional circumstances” that the public interest in deportation will be outweighed by other factors;
“Exceptional” here means something “very compelling” rather than something “unusual”; that something is “unusual” is, no doubt, a necessary but not sufficient condition for the determination that “exceptional circumstances” apply.
The application of the new rules in an individual case is necessarily fact specific
The Court of Appeal considered that the First Tier Tribunal’s approach was incorrect; The Article 8 criteria ought to have been considered through the lens of the new rules rather than in the free-standing manner adopted by the First Tier Tribunal. The First Tier Tribunal was considered to have fallen into error. While it was fair to say that mention was made of the public interest in “removing foreign citizens convicted of serious offences”, the Court could not detect any acknowledgment of the great weight to be attached to the public interest in the deportation of “foreign criminals”. The Court stated that it is because of the importance attached to that interest that there needs to be something compelling to outweigh it. No special weight was given to the public interest in deportation at all. As a consequence, the First Tier Tribunal’s error, lay in treating “exceptional circumstances” as meaning “unusual circumstances” rather than “compelling reasons”.
LW’s residence in the UK for approximately 40 years, was a point of importance, but to found “compelling reasons” for not deporting him, considerably more was required than that provided by the First Tier Tribunal or the Upper Tribunal.
The relationship between the length of residence, the length of sentence and the gravity of the offending (consider, for example, murder, rape and terrorism) would require careful consideration on a fact specific basis, always keeping in mind that the reasons need to be compelling to outweigh the very strong public interest in the deportation of foreign criminals.
The Court of Appeal concluded that the First Tier Tribunal erred in law in its approach to the new rules. In upholding the First Tier decision, the Upper Tribunal had likewise erred in law. Neither decision could stand.
By way of postscript, the Court of Appeal stated that they were far from saying that, on the facts of this case it might not be open to the Tribunal( upon remittal) to conclude that there are compelling reasons for not deporting LW – based especially on the fact of 40 years’ (lawful) residence so as to make deportation unconscionable despite his sentence for dealing in class A drugs. But it mattered to public confidence that any such decision is reached appropriately, after due regard is had to the great weight to be attached to the public interest in the deportation of foreign criminals and with “exceptional circumstances” properly understood as meaning “compelling reasons”.
Children’s best interests not strong enough to displace the public interest in deportation