Case Summaries

Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 

 

Neither the British nationality of the Deportee’s children nor their likely lengthy separation from him outweighed the public interest in his deportation.

 

Image barbedThe case of  Secretary of State for the Home Department v CT (Vietnam) [2016] EWCA Civ 488 raised the following considerations:

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 [2013] EWCA Civ 550, [2014] 1 WLR 998 and MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 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) [2014] 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.

 

KD (Jamaica) v Secretary of State for the Home Department [2016] EWCA Civ 418

 

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 [2016] EWCA Civ 418  proceeded  along the following basis:Delay 2
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 [2013] EWCA Civ 1192; [2014] 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.  

 

Secretary of Statefor the Home Department v LW (Jamaica) [2016] EWCA Civ 369

 

Appropriate   weight is  to be attached to public interest   deportation considerations  regardless of 40 years lawful residence in the UK

 

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In Secretary of State for the Home Department v LW (Jamaica) [2016] 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”.

 

BL (Jamaica) v The Secretary of State for the Home Department [2016] EWCA

 

Children’s best interests  not strong enough  to displace the public interest in  deportation

 

broken-family

The case of BL (Jamaica) v The Secretary of State for the Home Department [2016] EWCA  took into account the following considerations:
The central issue in the appeal  before the Court of Appeal was  whether  the Upper Tribunal made an error of law in allowing an appeal by BL, a foreign convicted offender.
BL’s family unit consisted  of his partner, KS, and four minor children. KS had two other children from a previous relationship. BL also had a child from a previous partner who was 8 years old at the date of the deportation decision. KS and all the children of BL are British citizens.
The Upper Tribunal  found credible the evidence given by a child of the family.  The eldest son spoke of the difference between the home with BL and in his absence. In particular the son noted that KS could not manage her money and drank more than was good for her. The Upper Tribunal  inferred that without BL the family would descend into poverty and require the support of social services.
The Court of Appeal considered that the  key issue that the Upper Tribunal  had to resolve was how to balance BL’s Article 8 rights, where children are involved, with the public interest in deportation. On this issue,  it was considered that the Upper Tribunal  were unquestionably right that the two crucial authorities were  SS (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 550, [2014] 1 WLR 998 and MF (Nigeria) v SSHD [2013] EWCA Civ 1192; [2014] 1 WLR 544. The Upper Tribunal  correctly recognised that, while the children’s best interests are a primary consideration, they need not be the, or the sole, primary consideration. But in their analysis of SS (Nigeria), the Upper Tribunal  failed to refer to an important holding of the  Court  of Appeal on balancing the best interests of the children with the public interest in deportation. As the Court put it in SS (Nigeria), the interests of the children are a substantial consideration. But the  Court in  SS (Nigeria), went on to give further valuable guidance as to how the competing interests of the children and the public interest in deportation were to be balanced. The  Court held that the children’s interests will have to be stronger the more pressing the nature of the public interest in the parent’s removal. The public interest will be greater the more serious the offence. Moreover, the courts have to respect the view of the legislature on the pressing nature of the offence particularly since it reflected policy in the area of moral and political judgment. The children’s best interests have to be weighed against other relevant considerations on that basis. In short, as applied to this case, it was  not the function of the balancing exercise to “promote” or “fortify” their interests but to weigh them appropriately in the balance.
It was considered that failure to have regard to the holdings in SS(Nigeria) led the Upper Tribunal into error because, having established what the children’s best interests required, they failed to go on and explain why their interests were strong enough to displace the public interest in deportation. The public interest was  particularly pressing in this case because BL, with his four year sentence, could  not bring himself within paragraph  399 and 399A of the Immigration Rules. Moreover, since such a person cannot claim under those paragraphs  it was  clear that he must be able to show something over and above the requirements of those paragraphs.
The Upper Tribunal  had  made no sufficient inquiry into whether there was any other family member who could be able to care for his children. The obvious candidate was KS in the case of the children in the family unit. KS had looked after the family while BL was in prison or immigration detention and the Upper Tribunal  had not made any findings that the family had then descended into poverty or required the support of social services, or that if that were to happen, there would not be adequate support services for these children. The Upper Tribunal  were entitled to work on the basis that the social services would perform their duties under the law and, the Upper Tribunal  was not bound in these circumstances to regard the role of the social services as irrelevant. KS’s son’s evidence was an insufficient evidential basis for the Upper Tribunal’s conclusion on this point. His evidence was in reality uncorroborated and self-serving hearsay on this issue.
Not having started with the relevant question, the Upper Tribunal  gave no weight to the evaluation of the Secretary of State on the question of deportation or to the fact that Parliament considered that exceptional circumstances had to be shown. Moreover, the circumstances of BL’s family were  not exceptional as was  clear from the fact that they would not have been enough if BL had committed a less serious offence.
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